By Quinne Daoust

The iconic swimming baby of Nirvana’s world famous “Nevermind” album has filed suit against the band’s estate in a California Federal District Court. Nearing the 30th Anniversary of the beloved album’s release, Spencer Elden’s lawsuit has the entertainment industry reeling, as we collectively question our longstanding cultural devotion to a classic archetype of the 90’s grunge aesthetic.

The Allegations

On August 24, 2021, Nevermind’s cover-baby Spencer Elden filed suit in a Los Angeles federal district court against several defendants, among them is Warner Records, entertainment mogul David Geffen, album art photographer Kirk Weddle, Courtney Love as the executor of Kurt Cobain’s estate, and the remaining Nirvana band members. The complaint alleges violations of federal criminal child pornography statutes, privacy intrusion claims, negligence claims, illegal distribution of private sexually explicit materials, and California constitutional violations.[1]

The Photo

In 1991, Kirk Weddle took explicit photos of four-month-old Elden at a community pool in Pasadena, California.[2] These shots of young Elden resulted in the Nevermind album’s iconic cover art, eventually selling over 30 million copies worldwide.[3] Later that year, Nevermind rose quickly to the top of the Billboard charts, incidentally catapulting Elden into the limelight and cementing his infant image into the annals of music history.[4] According to Elden’s complaint, neither Elden nor his parents ever signed a release “authorizing the use of any images of Spencer or his likeness.”[5] At the time, Elden’s parents were reportedly only paid $200, and the shoot only lasted around fifteen seconds.[6]

These photographs gave rise to Elden’s lawsuit thirty years later, characterizing this experience as one forever tying his true identity to the “commercial sexual exploitation he experienced as a minor” that has been “distributed and sold worldwide from the time he was a baby to the present day.”[7]

The Complaint

Federal law defines “child pornography” as any visual depiction of sexually explicit conduct where “(A) The production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) Such visual depiction is a digital image, computer image, or computer-generated image that is, or is distinguishable from, that of a minor engaging in sexually explicit conduct; or (C) Such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.”[8]

Furthermore, federal child pornography laws make it illegal to knowingly possess[9], knowingly access with intent to view[10], knowingly mail, transport, or ship through foreign commerce[11], knowingly receive or distribute[12], knowingly reproduce for distribution[13], or advertise, promote, present, distribute, or solicit[14] such child pornographic materials.

According to Elden, the Nevermind album cover constitutes a violation of federal child pornography law. In describing the iconic underwater album cover, Elden’s complaint analogizes his image to that of a “sex worker,” as he grabs for a dollar bill “positioned dangling from a fishhook in front of his nude body with his penis explicitly displayed.”[15] The complaint alleges the photo “intentionally focused” on Elden’s “carefully positioned enlarged genitals.”[16]

In addition to violations of federal child pornography laws, Elden further claims the defendants were negligent in distributing his nude photo and invaded his constitutional right to privacy under California law.[17]

He requests preliminary and permanent injunctive relief to prohibit Defendants from continuing to circulate the famous Nevermind cover art.[18] Among other forms of restitution, Elden further requests actual or liquidated damages in the amount of $150,000 from each defendant.[19]

The Outcome

While Elden feels he has suffered and will continue to suffer “permanent harm” by the album art’s distribution,[20] California sex crime lawyers speculate that the lawsuit will likely be unsuccessful for a myriad of reasons.

For one thing, regardless of the disproportionate compensation for the shoot, Elden’s parents agreed to the taking of Elden’s nude photographs.[21] Secondly, California criminal defense attorney Matthew Matejcek of firm Beles & Beles asserts that child pornographic material must “appeal to the viewer’s prurient interest;” Because the purpose of the photo is not to incite “lustful interest, sexual stimulation, or gratification of the viewer,” Matejcek told Rolling Stone he believes the case is likely to be dismissed.[22] Finally, California’s Statute of Limitations on Sex Crimes states that child victims of sex crimes have eight years after they become adults at 18 to file a complaint.[23] Because Elden is now thirty years old, without sound justification for delay his claim may be time-barred under California law.

Even if the case survives dismissal and proceeds to trial by jury as requested by Elden’s complaint[24], Nirvana’s Nevermind album stole the hearts of the 90’s grunge movement long ago—Elden is likely hard-pressed to find jurors sympathetic to his plight.

Like it or not, Elden’s legacy may be inextricably intertwined with that fateful afternoon at a Pasadena swimming pool.

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[1] Complaint at 1, Elden v. Nirvana, LLC, No. 2:21-cv-06836 (filed August 21, 2021).

[2] Id. at ¶ 72.

[3] Id. at ¶¶ 80, 100.

[4] Id. at ¶¶ 89, 92.

[5] Id. at ¶ 104.

[6] Kenneth Bachor, The Baby From Nirvana’s Nevermind is 25 Now,Time (Sept. 23, 2016, 9:00 AM), https://time.com/4499648/nirvana-nevermind-25-baby-spencer-elden/.

[7] Complaint, supra note 1, ¶ 94.

[8] 18 U.S.C. § 2256(8).

[9] 18 U.S.C. § 2252A(a)(5)(B).

[10] Id.

[11] 18 U.S.C. § 2252A(a)(1).

[12] 18 U.S.C. § 2252A(a)(2)(a).

[13] 18 U.S.C. § 2252A(a)(3)(a).

[14] 18 U.S.C. § 2252A(a)(3)(b).

[15] Complaint, supra note 1, ¶ 77.

[16] Id. at ¶ 81.

[17] Id. at ¶¶ 151, 168.

[18] Id. at ¶ 173.

[19] Id. at ¶ 178.

[20] Id. at ¶ 112.

[21] Samantha Hissong, ‘No Reasonable Person’ Would Consider Nirvana’s ‘Nevermind’ Cover Child Porn, Lawyers Say, Rolling Stone (Aug. 27, 2021, 2:52 PM), https://www.rollingstone.com/pro/news/nirvana-nevermind-child-pornography-lawsuit-1217786/.

[22] Id.

[23] Cal. Civ. Code. § 340.1.

[24] Complaint, supra note 1, ¶ 185.