Nirvana has formally responded to the Nevermind album cover lawsuit with a motion to dismiss the case.
As previously reported, Spencer Elden, who famously appeared on the cover of Nirvana’s landmark 1991 album Nevermind as a baby, is suing the band and other parties on child pornography charges.
The lawsuit states, in part, “Defendants knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so…Despite this knowledge, Defendants failed to take reasonable steps to protect Spencer and prevent his widespread sexual exploitation and image trafficking.”
In the 29-page motion filed on December 22, Nirvana makes a number of damming points against Elden’s claims including, “Elden 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 notes, “Elden’s claim that the photograph on the ‘Nevermind’ album cover is ‘child pornography’ is, on its face, not serious. A brief examination of the photograph, Elden’s own conduct (not to mention the photograph’s presence in the homes of millions of Americans who, on Elden’s theory, are guilty of felony possession of child pornography) makes that clear.”
The motion further notes that Elden’s child pornography claim has a ten-year limitations period and detailed, “Here, the complaint was filed on August 24, 2021, meaning that ten years before the date of filing is August 24, 2011. That means that…Elden must have ‘discovered’ the supposed ‘violation’ or ‘injury’ after August 2011. But the ‘Nevermind’ cover photograph was taken in 1991. It was world-famous by no later than 1992. Long before 2011, as Elden has pled, Elden knew about the photograph, and knew that he (and not someone else) was the baby in the photograph. He has been fully aware of the facts of both the supposed ‘violation’ and ‘injury’ for decades.”
In response to the motion, Robert Y. Lewis of the Marsh Law Firm representing Elden told Billboard, “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. The statute of limitations restarts claims each time UMG reproduces, distributes, or possesses Spencer’s Nirvana cover image.”