Nirvana's lawyers argued that Spencer Elden had enjoyed the fame of being the Nirvana baby, re-enacting "the photograph in exchange for a fee, many times" as well as having the album title "tattooed across his chest"
Last year, Spencer Elden, the man who was photographed as a baby on the album cover for Nirvana’s Nevermind sued the band alleging sexual exploitation. However, in a filing yesterday, the judge dismissed the charges after Elden failed to respond to Nirvana’s request for dismissal on time.
In a lawsuit filed in a Californian district court against numerous parties, including the surviving members of the band, Kurt Cobain’s widow Courtney Love and the record labels that released or distributed the album in the last three decades, Elden had alleged that the defendants produced child pornography with the image, which features him swimming naked towards a dollar bill.
Elden claimed his parents never signed a release authorising the use of his image on the album and that the nude image constitutes child pornography.
“The images exposed Spencer’s intimate body part and lasciviously displayed Spencer’s genitals from the time he was an infant to the present day,” legal papers filed in California claim.
Non-sexualised photos of infants are generally not considered child pornography under US law, however, Elden’s lawyer, Robert Y. Lewis, argues that the inclusion of the dollar bill (which was superimposed after the photograph was taken) makes the minor seem “like a sex worker”.
Elden alleges his “true identity and legal name are forever tied to the commercial sexual exploitation he experienced as a minor which has been distributed and sold worldwide from the time he was a baby to the present day”.
He claims he “has suffered and will continue to suffer lifelong damages” as a result of the artwork, including “extreme and permanent emotional distress” as well as “interference with his normal development and educational progress” and “medical and psychological treatment”.
According to Spencer’s father, Rick Elden, the family was paid $200 to throw 4-month-old Spencer into a pool for “half a second” so he could be shot by photographer Kirk Weddle (also named in the suit).
Elden was seeking damages of at least $150,000 from each of the 15 defendants, plus costs, and asked that the case be tried with a jury.
However, lawyers representing the defendants requested an immediate dismissal, saying that the album cover did not constitute child pornography and the statute of limitations on the claim had run out two decades ago.
They also said that Elden had enjoyed a level of fame granted from being the “Nirvana baby”, using the information to pick up women, selling autographed copies on the album on eBay and even recreating the photograph “in exchange for a fee, many times”. Elden also has the album title tattooed across his chest.
Elden failed to respond to the request for dismissal in time so the judge granted it, though left the door open for Elden to refile after making the appropriate changes. His lawyers have already stated they would do so.