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Nirvana Nevermind Baby Re-Files Child Pornography Lawsuit After Dismissal

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Spencer Elden, the now 30-year-old man who was photographed as a four-month-old boy for the iconic cover of Nirvana’s 1990 album, Nevermind, has re-filed a lawsuit against the band’s surviving members and several other related parties after a judge dismissed the initial suit on January 3.

After Elden’s legal team failed to respond to Nirvana’s motion to dismiss by a December 30 deadline, Judge Fernando M. Olguin dismissed the case. But the ruling stated that Elden could still file a second amended complaint by January 13, and he did so just in time.

Elden filed the original suit in August claiming that neither he nor his legal guardians consented to the photo; that the band failed to make good on a promise to cover his penis with a sticker; that he has been sexually exploited; and that he has suffered lifelong damages as a result of the image. He’s seeking $150,000, at minimum, from each of the defendants named in his suit, 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 all future pressings of the album’s cover (although Elden’s opportunity to stop the photo from gracing the packaging of the 30th anniversary super-duper-extra-special deluxe reissue has passed — it was released on November 12).

An amendment to the suit filed in November dropped former Nirvana drummer Chad Channing (who left Nirvana in 1990 over a year before Nevermind‘s release), Warner Music, and Heather Parry and Guy Oseary (former managers of Cobain’s estate) as defendants. But the amendment also presented additional allegations and context intended to prove that the band always intended the image to be sexual in nature.

The remaining defendants — UMG Recordings, Inc., Nirvana L.L.C., Kurt Cobain, Courtney Love (as executor of the Estate of Kurt Cobain), Nirvana members Krist Novoselic, Dave Grohl and the album’s photographer Kirk Weddle — filed a motion to dismiss the lawsuit on December 22 in a California court. 

In the new filing, according to Rolling Stone, Elden has dropped the claim related to sex trafficking “after Nirvana’s lawyers argued the alleged trafficking of Elden occurred before lawmakers made it possible for victims to sue using the federal sex-trafficking-of-children statute.” But Elden has dug in on his other claims, saying the band and related parties “intentionally commercially marketed the child pornography depicting Spencer and leveraged the lascivious nature of his image to promote the Nevermind album, the band, and Nirvana’s music, while earning, at a minimum, tens of millions of dollars in the aggregate.” The new filing also includes a statement from Robert Fisher, an art director for the Nevermind cover, who claims that an initial mock-up did not show the baby’s genitalia, but those involved deliberately decided to take the final photo in a more provocative and sexual direction.

In the motion for dismissal previously filed by Nirvana’s lawyers, they stated:

“The baby in the photograph is now a thirty-year-old man, the plaintiff, Spencer Elden. 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 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 parties also argued that the photo does not fall under the umbrella of child pornography because it is not “coupled with other circumstances that make the visual depiction lascivious or sexually provocative.” Instead the motion argues that the photograph “evokes themes of greed, innocence, and the motif of the cherub in Western art.”

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