Judge dismisses lawsuit over Nirvana album cover

LOS ANGELES – A lawsuit for alleged child sexual exploitation brought by a Los Angeles man pictured as a naked infant over 30 years ago on the cover of the groundbreaking Nirvana album “Nevermind” has been dismissed, according to court papers obtained Wednesday.

Spencer Elden sought millions of dollars in personal injury damages from the now-defunct group’s company, various record companies and art directors on the grounds that he was a victim of child pornography when, as a 4- month-old baby, he was photographed naked in a pool for the cover of the multimillion-selling 1991 album. He filed suit almost 30 years after the photo was taken.

In his ruling Tuesday, U.S. District Judge Fernando Olguin granted the defendants’ motion for summary judgment, finding that, based on the context of the photo’s creation, intended purpose and subsequent use, “the album cover is not child pornography.”

Minus sexual intent, “all we are left with is the image of a naked baby floating underwater, reaching for a dollar bill. This image — an image that is most analogous to a family photo of a nude child bathing — is plainly insufficient to support a finding of lasciviousness,” the judge wrote in his order.

“We are delighted the court has ended this meritless case and freed our creative clients of the stigma of false allegations,” Nirvana attorney Bert Deixler wrote in a statement emailed to City News Service.

The district court first tossed the action three years ago as barred by the 10-year statute of limitations.

But a panel of the U.S. 9th Circuit Court of Appeals reversed the dismissal and sent the case back to Los Angeles federal court for further proceedings, finding that because each republication of the cover photo may constitute a new personal injury, the plaintiff’s complaint was not barred by the statute of limitations.

“The album cover art has become iconic and highly recognizable,” Judge Sandra Ikuta, who was nominated to the court by President George W. Bush, wrote for the panel. “It has been displayed in the Museum of Modern Art in New York and has been frequently referenced, imitated and parodied. Commentators have opined that the naked infant reaching for a dollar symbolizes the ills of a capitalistic society.”

Elden, now 34, alleged that the defendants — Nirvana’s company; the individual band members, including Kurt Cobain’s estate, Dave Grohl and Krist Novoselic; Universal Music Group; The David Geffen Company; MCA Records; and photographer Kirk Weddle — caused him to suffer “lifelong damages” by “trafficking” his image worldwide.

The lawsuit argued that the cover image suggests a “sex worker grabbing for a dollar bill.”

The Woodland Hills man brought the initial August 2021 suit against the grunge-rock trio under a federal statute which allows victims of child pornography to recover damages for violations of child porn laws.

“Spencer’s victimization as a child remains frozen in time,” Margaret Mabie, one of Elden’s lawyers, said in a statement provided to City News Service at the time of the appeal. “His childhood self continues to be invaded and he will be repeatedly victimized as long as the `Nevermind’ cover continues to be distributed.”

According to the lawsuit, the 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.”

Elden’s parents never signed a release authorizing the use of the photos taken of the 4-month-old baby in a Pasadena aquatic center in 1990 and Elden received no compensation, the suit alleged.

But defendants including Courtney Love, executor for the estate of late Nirvana leader Cobain, argued in their court papers that Elden seemed to enjoy being the “Nirvana baby” and even has a “Nevermind” tattoo.

“He has re-enacted the photograph in exchange for a fee, many times; he has had the album title … 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,” according to a defense motion to dismiss.

Elden sought a jury trial and $150,000 from each of the 15 defendants or unspecified damages to be determined.

The cover of “Nevermind” — released 34 years ago by the Geffen/UMG label — depicts a naked baby swimming underwater, seemingly toward a fish hook with a dollar bill attached. It is among the best-known album covers in rock.

“To ensure the album cover would trigger a visceral sexual response from the viewer, (photographer Kirk) Weddle activated Spencer’s `gag reflex’ before throwing him underwater in poses highlighting and emphasizing Spencer’s exposed genitals,” Elden’s suit alleged.

Elden argued that the defendants “used child pornography depicting Spencer as an essential element of a record promotion scheme commonly utilized in the music industry to get attention, wherein album covers posed children in a sexually provocative manner to gain notoriety, drive sales and garner media attention and critical reviews.”

As a result, Elden “has suffered and will continue to suffer lifelong damages,” according to the complaint.

Geffen Records originally shipped 46,521 copies of “Nevermind” to retailers in hopes of eventually selling 200,000 copies. The album, a cornerstone of the grunge era, sold over 40 million copies.

In an interview with the Vulture website several year ago, former Nirvana drummer and current Foo Fighters leader Grohl commented on Elden’s suit: “Listen, he’s got a `Nevermind’ tattoo. I don’t.”