The Nirvana ‘Nevermind’ Album Cover Lawsuit Has Been Dismissed By a Judge

Rock Cellar Magazine StaffCategories:Latest News

Rock Cellar Magazine

Back in late August, eyebrows furled when news broke that Spencer Elden, the now 30-year-old man who was photographed as a baby in an image that would be made iconic when it became the album cover for Nevermind, the groundbreaking 1991 album from Nirvana, filed a lawsuit against the band and its team, alleging “child pornography.”

The image, of course, depicts Elden in a pose that looks like he’s swimming toward money on a fishing line, perceived as a slight against capitalism by the Kurt Cobain-fronted grunge trio, definitely a theme consistent with the band’s usual perspective on things. The album has sold more than 30 million copies worldwide and is generally considered the most important rock album of the 1990s. Variety notes, too, that “Non-sexualized nude photos of infants are generally not considered child pornography under law.”

The latest update in this saga, however, is that a judge has formally dismissed the lawsuit, per reports circulating on Tuesday morning.

More details, per NBC News (which also breaks down many of the details within the suit):

On Monday, Judge Fernando M. Olguin with the U.S. District Court for the Central District of California dismissed the lawsuit after Elden missed a Dec. 30 deadline to file an opposition to the defendants’ request that the suit be tossed out.

Online court documents show that Elden still has the opportunity to file a second amended complaint “attempting to cure, to the extent he believes is warranted by existing law, the alleged defects outlined in defendants’ motion.”

He has until Jan. 13 to file or the lawsuit will be dismissed “without prejudice,” the court documents state.

Shortly before Christmas, the Nirvana estate made a statement about Elden’s lawsuit, calling it “not serious” and adding (per Billboard):

“Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby,’” the band wrote, noting that Elden had “re-enacted the photograph in exchange for a fee” multiple times and has the name of the album tattooed on his chest. The band even accused Elden of having “used the connection to try to pick up women,” citing a media interview in which he recounted such a story.

Federal child pornography law has a 10-year statute of limitations, which begins running from the point when a victim “reasonably discovers” the problem — meaning either the violation itself or the harm caused by it. For Elden, Nirvana said, that would mean he only discovered the image in 2011.

“But the Nevermind cover photograph was taken in 1991. It was world-famous by no later than 1992,” the band wrote. “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.”

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