Will it be a case of, ‘Oh well, whatever, never mind’?
Spencer Elden, the ‘Nirvana baby,’ has lost his lawsuit against the band.
Elden, now 30 years old, sued the grunge icons, citing child exploitation as he claimed the iconic cover of their 1991 album Nevermind – in which he appears as a four-month-old baby, naked and in a swimming pool – essentially amounted to child pornography.
As of Tuesday (4 January), Judge Fernando M. Olguin of the California District Court has thrown out the case on the basis of “with leave to amend” – meaning Elden can refile his claim with changes, if he chooses to.
Elden has until 13 January to refile his claim.
“Elden’s claim that the photograph on the Nevermind album cover is ‘child pornography’ is, on its face, not serious,” argued Nirvana’s lawyer Bert H. Deixler.
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The motion was filed on behalf of Nirvana band members Dave Grohl and Krist Novoselic, alongside Courtney Love, executor of Kurt Cobain’s estate.
Others backing the motion to have the case thrown out of court include cover photographer Kirk Weddle, UMG Recordings who made the record, and the Nirvana LLC firm behind the band.
Additional defences put forward by the band’s legal team included the fact that it has taken too long for Elden to come forward with the child pornography argument.
“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,” wrote Diexler.
In his original motion, Elden claimed the photographed had inflicted “lifelong damages”.
When he sued last summer, court documents read:
“The permanent harm he has proximately suffered includes but is not limited to extreme and permanent emotional distress with physical manifestations, interference with his normal development and educational progress, lifelong loss of income earning capacity, loss of past and future wages, past and future expenses for medical and psychological treatment, loss of enjoyment of life, and other losses to be described and proven at trial of this matter.”
Over the years, Elden has recreated the photograph on anniversaries of the album.
In 2015, he told The Guardian:
“It is a weird thing … being part of such a culturally iconic image. But it’s always been a positive thing and opened doors for me.
“I might have one of the most famous penises in the music industry, but no one would ever know that to look at me.
“Sooner or later, I want to create a print of a real-deal re-enactment shot, completely naked. Why not? I think it would be fun.”
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