Spencer Elden Appeals Dismissal Of 'Nevermind' Lawsuit

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Spencer Elden, who was four months old when he was photographed naked in a swimming pool for the cover of Nirvana’s 1991 album Nevermind, has appealed the dismissal of his lawsuit against surviving members of the band.

Lawyers representing Elden claim Judge Fernando Olguin of U.S. District Court in Central California ruled in error that a statute of limitations applies to the case, because Elden continued to suffer harm. They cite Masha’s Law, which allows child pornography victims to seek monetary damages into adulthood.

Olguin ruled in September that Elden waited too long to make the claim that he was sexually exploited by the band. In his decision, 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.”

At the time, Elden’s lawyer Margaret Mabie said her client planned to appeal. “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,” she said.

In a filing in California’s Ninth Circuit Court of Appeals, reported by Spin, Elden’s lawyers wrote that “courts have repeatedly held that distribution of child pornography infringes a victim’s dignity interests no matter the victim’s age at the time of distribution.”

They claimed the late Nirvana singer Kurt Cobain “described his twisted vision for the Nevermind album cover as a manifestation of his emotional and sexual disturbances” in “several journal entries.”

The appeal claimed the Nevermind cover causes Elden “extreme ongoing psychic or emotional injury for which he is entitled to damages and an injunction. Although this remedy will not rid the world of his sexualized image, it will provide him the means to get mental health treatment and give him the benefit of knowing that the distribution and repeated violation of his privacy … will finally stop.”

MORE: Judge Tosses Out Nirvana Baby Lawsuit

The baby Elden was photographed treading water naked in a swimming pool at the Rose Bowl Aquatic Center for the cover of Nevermind. His parents collected $200.

In a lawsuit filed in August 2021 against the Cobain estate 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.

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.

To mark the album’s 25th anniversary in 2016, he recreated the image for photographer John Chapple, who told iHeartRadio.ca at the time that Elden offered to go nude. But, Chapple explained, “I didn’t know any publication that would use pictures of his junk.”

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.”

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