American rock band Nirvana has sought the dismissal of Spencer Elden’s lawsuit alleging child pornography on the cover of the group’s 1991 album Nevermind.
Elden, whose image as an infant is featured on the album’s cover, sued the band earlier this year on the grounds that the nude image of him constituted ‘child pornography.’ He sought damages worth $150,000 from each of the defendants, including surviving members of the band, Dave Grohl and Krist Novoselic.
The album cover depicted a naked four-month old Elden in a swimming pool, trying to grab a note stuck to a fishhook, which Elden’s lawyer Robert Y Lewis argued in the suit, made him appear “like a sex worker.” Lewis added that Elden’s parents had not consented to the usage of the image.
The band’s attorney, Bert H Deixler, said the grounds for complaint were absurd and noted that if Elden’s claims were to be considered, then every American who has the poster in possession becomes guilty of child pornography.
Deixler further added that Elden’s claims also fail at the outset because they are time-barred. “Elden asserts two causes of action, one under the federal statute that permits victims of certain federal child pornography criminal offences to sue for civil damages and another under the federal statute that permits victims of certain trafficking crimes to sue for civil damages. Neither cause of action is timely,” he said, according to the Variety report.
The band’s counsel also noted that the 30-year-old Elden has “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.’ He has re-enacted the photograph in exchange for a fee, many times; he has had the album title Nevermind tattooed across his chest; he has appeared on a talk show wearing a self-parodying, nude-coloured 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.”
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It is notable that prior to slapping the band with the lawsuit, Elden recreated the iconic cover for the 17th, 20th, and the 25th anniversaries of the record, and called the experience “cool, but weird” during a 2016 interview.
However, that same year, while speaking to Time magazine, Elden said that he was “upset” while growing up. “I never met anybody. I didn’t get a call or email. I just woke up already being a part of this huge project. It’s pretty difficult – you feel like you’re famous for nothing,” he had said.