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The Nirvana baby’s Nevermind lawsuit is likely to be dismissed, lawyers say

Spencer Elden, who appeared on the band’s Nevermind cover, apparently ‘damned’ his child pornography case by re-creating the photo

Earlier this week (August 24), Spencer Elden, the 30-year-old-man who appeared on Nirvana’s Nevermind cover as a four-month-old baby, filed a lawsuit against the remaining members of the band and Kurt Cobain’s estate (including overseer Courtney Love), alleging child pornography and sexual exploitation. 

According to legal experts, however, the case is likely to be dismissed for a variety of reasons, including the fact that Elden has previously embraced the publicity from the image (which, if you’re unfamiliar, depicts an underwater baby with its genitals exposed, reaching for a dollar bill).

In the original legal papers, Elden’s lawyers claim that the image “exposed Spencer’s intimate body part and lasciviously displayed Spencer’s genitals from the time he was an infant to the present day”. Though non-sexualised images of infants aren’t generally considered child pornography under US law, the legal team argues that the dollar bill makes the then-baby seem “like a sex worker”.

Elden is asking for damages of at least $150,000 from each of the 15 defendants, who also include surviving members Dave Grohl and Krist Novoselic, and the album cover photographer (and former family friend of Elden) Kirk Weddle.

Speaking to the Hollywood Reporter, though, Bryan Sullivan, an entertainment litigation partner at Early Sullivan, calls the suit “ridiculous”, adding that the claims are weak even if there was no written agreement. “I think it is highly unlikely that a record company would use a photograph for an album cover without verifying the existence of a release signed by the parents,” Sullivan says. “But, if is there is no release, it does not mean he has a claim for child pornography. As to the right of privacy, you can waive it by your actions or by his parents’ actions in allowing him to be photographed.”

“Our understanding is there was no release,” counters Elden’s attorney, James Marsh. “In a culture in which we are trying to uphold consent as one of the highest values, an image of a child naked that he didn’t consent to should cause people concern.”

However, other legal experts have stated that Elden’s case is unlikely to be taken seriously by a judge, with one telling THR: “Depending on which federal judge this case is assigned to downtown, plaintiff’s counsel is likely going to be in for a very rough ride. Sanctions are a definite possibility.”

Primarily, the legal skepticism stems from Elden’s acceptance — and even celebration — of being featured on the cover in the past. “I think what will be most troubling for any judge will be the amount of time that has elapsed since the photo was published, the fact the kid’s parents did this knowingly (more or less, but they knew the naked baby was being photographed), and the numerous times that the plaintiff himself embraced the photo and sought publicity for himself,” says the lawyer.

Entertainment litigator and Lavely & Singer partner Andrew Brettler appears to agree, adding: “What I think really damns their case is the fact that this kid sat for all these interviews and re-created the album art.”

Elden has repeatedly drawn attention to his appearance on the cover, recreating the photo for the album‘s 10th, 20th, and 25th anniversaries. As shown in one of these images, he also has the record’s title tattooed on his chest. In 2010, meanwhile, he claimed that he was using the Nirvana connection to “make some money” as he was “broke”, and has previously boasted about how it “helps with girls”. 

“It is weird being part of such a culturally iconic image, because I didn’t really have anything to do with it,” he told the Guardian in 2015. “But it’s opened doors for me.”

Marsh maintains that Elden’s past comments about being the Nirvana baby don’t matter. “Hindsight is 2020,” the attorney says. “You can cherry-pick all kinds of things he’s said over the years. He’s also said he felt profoundly humiliated and exposed by this image.”