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Man pictured as naked baby on Nirvana album wins lawsuit appeal
The Industry Dec 21, 2023
| Photo courtesy of Guille.17/Flickr (CC BY 2.0)
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By Fred Shuster
A federal appeals court Thursday revived a previously dismissed lawsuit for alleged child sexual exploitation brought by a Los Angeles man pictured as a naked infant over 30 years ago on the cover of the groundbreaking Nirvana album “Nevermind.”
Spencer Elden sought personal injury damages from the now-defunct group’s company, various record companies and art directors on the grounds that he was a victim of child pornography when, as a 4-month-old baby, he was photographed naked in a pool for the cover of the multimillion-selling 1991 album. The district court dismissed the action last year as barred by the 10-year statute of limitations.
A panel of the U.S. 9th Circuit Court of Appeals reversed the dismissal and sent the case back to Los Angeles federal court for further proceedings, finding that because each republication of the cover photo may constitute a new personal injury, the plaintiff’s complaint was not barred by the statute of limitations.
“The album cover art has become iconic and highly recognizable,” Judge Sandra S. Ikuta, who was nominated to the court by President George W. Bush, wrote for the panel. “It has been displayed in the Museum of Modern Art in New York and has been frequently referenced, imitated and parodied. Commentators have opined that the naked infant reaching for a dollar symbolizes the ills of a capitalistic society.”
Elden, 32, alleged that the defendants — Nirvana’s company; the individual band members, including Kurt Cobain’s estate, Dave Grohl and Krist Novoselic; Universal Music Group; The David Geffen Company; MCA Records; and photographer Kirk Weddle — caused him to suffer “lifelong damages” by “trafficking” his image worldwide.
The lawsuit argued that the cover image suggests a “sex worker grabbing for a dollar bill.”
The Woodland Hills man brought the initial August 2021 suit against the grunge-rock trio under a federal statute which allows victims of child pornography to recover damages for violations of child porn laws.
“Spencer’s victimization as a child remains frozen in time,” Margaret Mabie, one of Elden’s lawyers, said in a statement provided to City News Service at the time of the appeal. “His childhood self continues to be invaded and he will be repeatedly victimized as long as the ‘Nevermind’ cover continues to be distributed.”
Nirvana attorney Bert H. Deixler said the ruling Thursday is a “procedural setback” that “does not change our view. We will defend this meritless case with vigor and expect to prevail.”
According to the lawsuit, the defendants “knowingly produced, possessed and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so. … Despite this knowledge, defendants failed to take reasonable steps to protect Spencer and prevent his widespread sexual exploitation and image trafficking.”
Elden’s parents never signed a release authorizing the use of the photos taken of the 4-month-old baby in a Pasadena aquatic center in 1990 and Elden received no compensation, the suit alleges.
But defendants including Courtney Love, executor for the estate of late Nirvana leader Cobain argued in their court papers that Elden seemed to enjoy being the “Nirvana baby” and even has a “Nevermind” tattoo.
“He has re-enacted the photograph in exchange for a fee, many times; he has had the album title … tattooed across his chest; he has appeared on a talk show wearing a self-parodying, nude-colored onesie; he has autographed copies of the album cover for sale on eBay; and he has used the connection to try to pick up women,” according to a defense motion to dismiss.
Elden sought a jury trial and $150,000 from each of the 15 defendants or unspecified damages to be determined.
The cover of “Nevermind” — released 32 years ago by the Geffen/UMG label — depicts a naked baby swimming underwater, seemingly toward a fish hook with a dollar bill attached. It is among the best-known album covers in rock.
“To ensure the album cover would trigger a visceral sexual response from the viewer, (photographer Kirk) Weddle activated Spencer’s ‘gag reflex’ before throwing him underwater in poses highlighting and emphasizing Spencer’s exposed genitals,” Elden’s suit alleges.
Elden contends that the defendants “used child pornography depicting Spencer as an essential element of a record promotion scheme commonly utilized in the music industry to get attention, wherein album covers posed children in a sexually provocative manner to gain notoriety, drive sales and garner media attention and critical reviews.”
As a result, Elden “has suffered and will continue to suffer lifelong damages,” according to the complaint.
Geffen Records originally shipped 46,521 copies of “Nevermind” to retailers in hopes of eventually selling 200,000 copies. The album, a cornerstone of the grunge era, eventually sold over 30 million copies.
In an interview with the Vulture website, former Nirvana drummer and current Foo Fighters leader Grohl commented on Elden’s suit: “Listen, he’s got a ‘Nevermind’ tattoo. I don’t.”
Updated Dec. 22, 2023, 8:17 a.m.
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