Nirvana Hits Back at Spencer Elden in Nevermind Cover Art Lawsuit

Estate argues that he is “fully aware of the facts of both the supposed ‘violation’ and ‘injury’ for decades”
Nirvana 1991
(Credit: Paul Bergen/Redferns)

Remember when Spencer Elden, the baby pictured on the cover of Nevermind, sued  Nirvana alleging “commercial sexual exploitation” of a minor? The case elicited groans and outrage from Nirvana fans, but the band didn’t issue a statement on the case until now.

According to Billboard, on Wednesday in a new filing at U.S. District Court in Central California, the Nirvana estate fired back at Elden and the case.

“Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby,’” the band’s estate said in the filing. They also stated that the statute of limitations for the suit expired over a decade ago.

“But the Nevermind cover photograph was taken in 1991. It was world-famous by no later than 1992,” the filing said. “Long before 2011, as Elden has pled, Elden knew about the photograph, and knew that he (and not someone else) was the baby in the photograph. He has been fully aware of the facts of both the supposed ‘violation’ and ‘injury’ for decades.”

The Nirvana estate also argued that this isn’t a case of child pornography.

“Elden’s claim that the photograph on the Nevermind album cover is ‘child pornography’ is, on its face, not serious,” the Nirvana estate also said. “A brief examination of the photograph, or Elden’s own conduct (not to mention the photograph’s presence in the homes of millions of Americans who, on Elden’s theory, are guilty of felony possession of child pornography) makes that clear.”

The initial suit filed by Elden came a month before Nevermind‘s 30th anniversary. In the suit, Elden alleged that as a four-month-old baby, he could not give permission for his image to be used on the cover and that his legal guardians didn’t give consent for its use either. Elden also claimed that he “has suffered and will continue to suffer lifelong damages” as a result of the cover. He also alleges that the defendants “knowingly benefited and continue to benefit from their participation in Spencer’s commercial exploitation.”

Elden’s attorneys, Margaret Mabie, Robert Y. Lewis, and James Marsh of the Marsh Law Firm, issued the following statement to SPIN:

“In 1991, Nirvana exploited Spencer’s inability to consent as an infant, and today, the band and Universal Music Group (UMG) continue to prioritize profits over our client Spencer Elden’s right to consent, to have privacy, and to feel dignity. Nirvana and UMG’s motion to dismiss focuses on their past conduct and ignores their ongoing distribution, especially with the 30-year Nevermind anniversary and profit margins. We cannot continue to ignore is that the image of Elden, at four months old, is actively distributed and constitutes the legal definition of child pornography according to the Dost factors. Child pornography is a “forever crime” – any distribution of or profits earned from any sexually explicit image of a child not only creates longstanding liability but it also breeds lifelong trauma. This is common for all of our clients who are victims of actively traded child pornography, regardless of how long ago the image was created.

“Masha’s Law or 18 USC 2255 makes it clear that the statute of limitations restarts claims each time UMG reproduces, distributes, or possesses Spencer’s Nirvana cover image. Similarly, the statute of limitations on the 18 USC 1595 claims restart each time any defendant receives any “thing of value” for the image. For the argument on the statute of limitations to hold water, Nirvana and UMG would have had to cease distribution of, and forfeit profits from, the image in August of 2011. They are welcomed to do so today forward.”

In the past, Elden expressed his approval and dismay about being associated with the iconic cover.

Elden is seeking $150,000 from each party named in the suit.

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