The survivng members of Nirvana have formally asked the court to dismiss a sexual exploitation suit over Nevermind, their 1991 sophomore album that featured a naked baby on its cover art.
The filing came about four months after Spencer Elden sued the grunge band and Kurt Cobain’s estate for knowingly producing and advertising child pornography,” as well as failure “to take reasonable steps to protect Spencer and prevent his widespread sexual exploitation.” The art features a 4-month-old Elden naked in a swimming pool, reaching for a $1 bill attached to a fish hook. The now-30-year-old plaintiff alleged he has “suffered and will continue to suffer lifelong damages” as a result of the cover art. Photographer Kurt Weddle, Geffen Records, and Warner Records were also listed as defendants.
According to Billboard, an attorney representing Nirvana filed their request Wednesday, arguing Elden’s claims were both meritless and past the statute of limitations. Attorney Bert H. Deixler points out the plaintiff “has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.’ He has re-enacted the photograph in exchange for a fee, many times; he has had the album title ‘Nevermind’ tattooed across his chest; he has appeared on a talk show wearing a self-parodying, nude-colored onesie; he has autographed copies of the album cover for sale on eBay; and he has used the connection to try to pick up women.”
The motion also states that federal child pornography law comes with a 10-year statute of limitations, which begins when the alleged victim discovers the violation itself or the “injury” it caused.
“Elden has alleged no facts, at all, about any barriers outside his control which prevented him from asserting a timely claim, and cannot plausibly allege any such facts to warrant tolling of the statute from 1995 to the time of filing, even if he were given leave to amend,” Nirvana’s legal team wrote. “Elden’s failure to timely pursue a sex trafficking claim within the limitations period bars it now, to the extent that it is not already dead on arrival.”
Defendants Dave Grohl; Krist Novoselic; Courtney Love, the executor of Cobain’s estate, Weddle, UMG Recordings, and Nirvana LLC. have asked a judge to rule on their request no later than Jan. 20, 2022.
Attorneys for Elden, who is seeking $150,000 in damages, responded to the motion in a statement to Spin magazine. It reads in part:
Nirvana and UMG’s motion to dismiss focuses on their past conduct and ignores their ongoing distribution, especially with the 30-year Nevermind anniversary and profit margins. We cannot continue to ignore is that the image of Elden, at four months old, is actively distributed and constitutes the legal definition of child pornography according to the Dost factors. Child pornography is a “forever crime” – any distribution of or profits earned from any sexually explicit image of a child not only creates longstanding liability but it also breeds lifelong trauma. This is common for all of our clients who are victims of actively traded child pornography, regardless of how long ago the image was created.
