Nirvana Nevermind Baby Files Child Pornography Complaint Again After Dismissal
Spencer Elden, the now 30-year-old who was photographed when he was just four months old for Nirvana’s iconic 1990 album cover, It does not matter, filed a new lawsuit against the surviving members of the group and several other related parties after a judge dismissed the initial lawsuit on January 3.
After Elden’s legal team did not respond to Nirvana’s motion to dismiss by the December 30 deadline, Judge Fernando M. Olguin dismissed the case. But the ruling said Elden could still file a second amended complaint by Jan. 13, and he did so just in time.
Elden filed the original lawsuit in August, saying neither he nor his legal guardians consented to the photo; that the band broke their promise to cover his penis with a sticker; that he was sexually exploited; and that he suffered lifelong damage because of the image. He is asking for at least $150,000 from each of the defendants named in his lawsuit, which would total a minimum of $2,550,000. Additionally, Elden is seeking legal fees and an injunction, which would prevent his penis from appearing on any future album cover pressings (although the ability for Elden to prevent the photo from gracing the packaging of the super-duper-extra-special deluxe 30th anniversary reissue has passed – it was released on November 12).
An amendment to the lawsuit filed in November dropped former Nirvana drummer Chad Channing (who left Nirvana in 1990 more than a year before It does not matterde), Warner Music, and Heather Parry and Guy Oseary (former managers of the Cobain estate) as defendants. But the amendment also presented additional allegations and context intended to prove that the group had always intended the image to be sexual in nature.
The other defendants – UMG Recordings, Inc., Nirvana LLC, Kurt Cobain, Courtney Love (as executor of Kurt Cobain’s estate), Nirvana members Krist Novoselic, Dave Grohl and album photographer Kirk Weddle – filed a motion to dismiss the lawsuit. on December 22 in a California court.
In the new file, according to rolling stone, Elden dropped sex trafficking claim “after Nirvana’s attorneys argued that Elden’s alleged trafficking took place before lawmakers allowed victims to sue under federal trafficking law child sex”. But Elden dug into his other claims, saying the band and related parties “intentionally marketed child pornography depicting Spencer and leveraged the lascivious nature of his image to promote the It does not matter Nirvana’s album, band and music, while earning, at minimum, tens of millions of dollars in total. The new file also includes a statement from Robert Fisher, artistic director of the It does not matter cover, which claims that an initial mockup did not show the baby’s genitals, but those involved deliberately decided to take the final photo in a more provocative and sexual direction.
In the motion to dismiss previously filed by Nirvana’s attorneys, they stated:
“The baby in the photo is now a 30-year-old male complainant, Spencer Elden. Elden has spent three decades enjoying his stardom as the self-proclaimed “Nirvana Baby.” He re-enacted the photograph in return for a royalty, on several occasions; he has the album title ‘Nevermind’ tattooed on his chest; he 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 used the connection to try to pick up women.
The parties also argued that the photo does not constitute child pornography as it is not “associated with other circumstances which render the visual depiction lascivious or sexually provocative”. Instead, the motion argues that the photograph “evokes themes of greed, innocence, and the cherub motif in Western art.”