A lawsuit claiming the cover of Nirvana’s 1991 album Nevermind constitutes child pornography was dismissed last Friday.
Judge Fernando Olguin of U.S. District Court in Central California ruled that Spencer Elden waited too long to make the claim that he was sexually exploited by the band.
Elden was four months old when he was photographed naked in a swimming pool at the Rose Bowl Aquatic Center for the cover of Nevermind. Elden managed to tread water long enough for the picture to be snapped. His parents collected $200.
In a lawsuit filed in August 2021 against the estate of Kurt Cobain and Nirvana’s surviving members Dave Grohl and Krist Novoselic, Elden alleged he was portrayed as a “sex worker.”
Other defendants included photographer Kirk Weddle, art director Robert Fisher and original Nirvana drummer Chad Channing, who wasn’t in the band at the time of the cover shoot.
“Defendants intentionally commercially marketed Spencer’s child pornography and leveraged the shocking nature of his image to promote themselves and their music at his expense,” read the lawsuit.
Elden’s lawsuit alleged Weddle “took a series of sexually graphic nude photographs of Spencer. To ensure the album cover would trigger a visceral sexual response from the viewer, Weddle activated Spencer’s ‘gag reflex’ before throwing him underwater in poses highlighting and emphasizing Spencer’s exposed genitals.
“Cobain chose the image depicting Spencer — like a sex worker — grabbing for a dollar bill that is positioned dangling from a fishhook in front of his nude body with his penis explicitly displayed.”
Last December, lawyers for the defendants filed a motion to have the case tossed, claiming Elden spent three decades “profiting from his celebrity as the self-anointed ‘Nirvana Baby.’” They also claimed the 10-year statute of limitations for a civil claim has expired.
In January, Olguin dismissed the case “with leave to amend” after Elden’s lawyers missed a Dec. 30 deadline to file a rebuttal to the motion to dismiss. Elden’s lawyers refiled the lawsuit.
In his decision last week, Olguin wrote that Elden “fails to allege that he knew of a violation that occurred while he was a minor or an injury that forms the basis of the claim within ten years of filing this action.”
Bert Deixler, a lawyer representing the defendants, told Reuters: “We are pleased that this meritless case has been brought to a speedy final conclusion.”
Elden’s lawyer Margaret Mabie told Rolling Stone her client plans to appeal the dismissal. “The Nevermind cover was created at time when Spencer was a baby and it is impossible for him to age out of this victimization while his image remains in distribution.”
To mark the album’s 25th anniversary in 2016, Elden recreated the image for photographer John Chapple, who told iHeartRadio.ca at the time that Elden offered to go nude. “I didn’t know any publication that would use pictures of his junk,” said Chapple.
Elden previously recreated the photo on at least three different occasions and has, in various interviews, shared mixed feelings about his place in rock history.
“It’s hard not to get upset when you hear how much money was involved,” he told Time in 2016. “I go to a baseball game and think about it: ‘Man, everybody at this baseball game has probably seen my little baby penis.’ I feel like I got part of my human rights revoked.”
Asked about the lawsuit late last year, Grohl told Vulture: “Listen, he’s got a Nevermind tattoo. I don’t.”