Nirvana Baby Pushes Another Appeal For “Nevermind” Lawsuit Dismissal

The case filed by Spencer Elden, the baby on the Nevermind cover of Nirvana, was previously dismissed. Elden claimed that damage has been done to the album over, however, it was denied for the third and last time by the Court Judge, stating that the statute of limitations had expired.

Despite that, Elden is still persistent in getting some better results out of his efforts. Just recently, he submitted an appeal for dismissal. Elden was four months old when the classic Nirvana album cover included his picture. Elden considered it “unlawful behavior” and claimed that the shot had caused him “permanent trauma.” He even called the use of the image “child pornography.”

The suit was officially dismissed on September 2, but Elden’s lawyers have now appealed and claimed that the judge presiding ruled in some error concerning the statute of limitations on the case. They also cited and emphasized Masha’s Law which allows child pornography victims to seek monetary damages into adulthood. Elden’s attorneys stated:

“Courts have repeatedly held that distribution of child pornography infringes a victim’s dignity interests no matter the victim’s age at the time of distribution.”

The filing also stated that Elden “is aware that Appellees are commercially exploiting the frontal nude image of him as a four–month–old child to sell an [n] album to millions of people (many of whom he does not know) around the world. This understandably causes him extreme ongoing psychic or emotional injury for which he is entitled to damages and an injunction. Although this remedy will not rid the world of his sexualized image, it will provide him the means to get mental health treatment and give him the benefit of knowing that the distribution and repeated violation of his privacy by Appellees will finally stop.”

U.S. District Court Judge Fernando M. Olguin stated last September 2:

“In short, because it is undisputed that [Elden] did not file his complaint within 10 years after he discovered a violation . . . the court concludes that his claim is untimely.

“Because the plaintiff had an opportunity to address the deficiencies in his complaint regarding the statute of limitations, the court is persuaded that it would be futile to afford the plaintiff a fourth opportunity to file an amended complaint.”

Elden initially brought the lawsuit in an effort to prevent the cover from being used for a 30th-anniversary special edition release. Still, he failed to do so because he was late in responding to Nirvana’s request for the case to be dismissed.

Although Elden claimed that the album cover has done harm to him, he has also previously celebrated it by recreating it in 2016 to mark the album’s 25th anniversary.