Nude baby on Nirvana’s Nevermind album files new $1.5million lawsuit claiming iconic image is child pornography, after judge threw out now-30-year-old’s original case
- Spencer Elden, the Nirvana baby, has filed a new $1.5million lawsuit over cover
- He is seeking at least $150,000 from 10 defendants for alleged child exploitation
- Earlier lawsuit was dismissed on January 4 after Elden’s lawyers missed deadline
- New lawsuit claims Geffen Records deliberately sought to display Elden’s penis
- The band’s lawyers argued Elden ‘spent three decades profiting’ from the album
The nude baby on Nirvana’s Nevermind album has filed a new $1.5million lawsuit claiming the iconic image is child pornography after a judge threw out his original case.
Spencer Elden, 30, had his initial claim dismissed by Federal Judge Fernando M. Olguin on January 4 after his lawyers missed a deadline, but was given permission to file an amended version.
The new complaint, filed on Wednesday maintains the ‘lascivious nature of his image’ amounted to ‘child pornography’ that helped the band reap tens of millions of dollars at his expense.
The suit includes a declaration from art director Robert Fisher, describing a stock photo he used for a mockup for the ‘Nevermind’ cover that depicted a different baby and did not show his penis.
Elden’s lawyers argue this demonstrates that the band and Geffen Records deliberately sought to display his penis and exploit the image for commercial gain.
The 30-year-old is seeking at least $150,000 from each of the 10 defendants named, among them Nirvana drummer Dave Grohl and bassist Krist Novoselic; Courtney Love, the widow of Nirvana lead singer Kurt Cobain; several record labels, and photographer Kirk Weddle.
The band’s lawyers argued after the initial lawsuit, first filed in August in federal court in California, that Elden has ‘spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’.’
Elden re-enacted the photo for money ‘many times,’ the lawyers said in a motion to dismiss the previous lawsuit in December, even had the album title tattooed across his chest, appeared on a talk show wearing a self-parodying nude-colored onesie and had ‘used the connection to try to pick up women’.
Spencer Elden, the nude baby on Nirvana’s Nevermind album has filed a new $1.5million lawsuit claiming the iconic image is child pornography after a judge threw out his original case
Spencer Elden, 30, had his initial lawsuit dismissed by Federal Judge Fernando M. Olguin on January 4 after his lawyers missed a deadline, but was given permission to file an amended version
Legendary: Nirvana became one of the synonymous bands of the ‘grunge movement,’ and was formed of Dave Grohl, the late Kurt Cobain and Krist Novoselic (pictured in 1993)
Elden has claimed the band decided to create its own photo to save money, with Cobain sardonically suggesting that the cover include a warning sticker saying: ‘If you’re offended by this, you must be a closet pedophile.’
Elden’s lawsuit no longer accuses Nirvana of violating a 2003 federal law against child sex trafficking, after the defendants said that law could not be applied retrospectively.
The nude image was snapped in 1990 at the Pasadena aquatic center when Elden was four months old. His father Rick was an artist who also rigged special effects for Hollywood, and let his son appear as a model for the band’s new album.
At the time, Rick shared a studio in old town Pasadena with other artists to help pay the rent. Among them was photographer Kirk Weddle, who had the contract to photograph a baby underwater.
Rick told EchoPark: ‘Babies have a gag reflex. If you blow in their face, they hold their breath. I blew in Spencer’s face and put him in the water. Kirk was shooting 18 frames a second, so Spencer was in the water for about two seconds.’
Since appearing on the cover, Elden has repeatedly recreated the image as both a teenager and an adult – on the 10th, 17th, 20th and 25th anniversaries of the album’s release – but in many interviews has shared his mixed feelings about it.
It is generally believed that the album cover is a commentary on capitalism – with the addition of a dollar bill on the end of a fishing hook the focus of the baby’s attention.
The band’s attorney Bert H. Deixler used the term ‘absurd’ in describing the Elden lawsuit’s contention that ‘the creation of the photograph for the album cover art entailed the sex trafficking of Elden when he was a baby.’
‘Elden’s claim that the photograph on the ‘Nevermind’ album cover is ‘child pornography’ is, on its face, not serious,’ the motion argues.
‘A brief examination of the photograph, or Elden’s own conduct (not to mention the photograph’s presence in the homes of millions of Americans who, on Elden’s theory, are guilty of felony possession of child pornography) makes that clear.’
Deixler asked that Judge Olguin dismiss the case by January 20, 2022.
The motion was filed on behalf of defendants Dave Grohl, Krist Novoselic, Courtney Love (executor of Kirk Cobain’s estate), Kirk Weddle (the cover photographer), UMG Recordings and Nirvana LLC.
Deixler argued that the aforementioned merits of the case, or lack of them, shouldn’t even be at issue, and that the late date at which the lawsuit was filed is all that needs to be considered for a dismissal.
There is a 10-year statute of limitations on filing a lawsuit involving the child pornography alleged, starting with the date the plaintiff could reasonably have been aware of the pornographic use, or that they turned 18, according to Nirvana’s attorneys.
‘Elden’s claims fail, at the outset, because they are time-barred,’ he writes.
Since appearing on the cover, Elden (pictured aged 20) has repeatedly recreated the image as both a teenager and an adult – on the 10th, 17th, 20th and 25th anniversaries of the album’s release – but in many interviews has shared his mixed feelings about it
‘Elden asserts two causes of action, one under the federal statute that permits victims of certain federal child pornography criminal offenses to sue for civil damages … and another under the federal statute that permits victims of certain trafficking crimes to sue for civil damages … Neither cause of action is timely.’
Elden’s lawyers at Marsh Law issued a response to Variety, writing in part: ‘In 1991, Nirvana exploited Spencer’s inability to consent as an infant, and today, the band and Universal Music Group (UMG) continue to prioritize profits over our client Spencer Elden’s right to consent, to have privacy, and to feel dignity.’
‘Nirvana and UMG’s motion to dismiss focuses on their past conduct and ignores their ongoing distribution, especially with the 30-year “Nevermind” anniversary and profit margins.’
The motion cites occasions on which Elden or his father seemed to revel in media attention for the cover, as recently as a 2015 Guardian interview.
‘It is a weird thing … being part of such a culturally iconic image. But it’s always been a positive thing and opened doors for me,’ said Elden of the photograph.
‘I might have one of the most famous penises in the music industry, but no one would ever know that to look at me. Sooner or later, I want to create a print of a real-deal re-enactment shot, completely naked. Why not? I think it would be fun.’
The filing went on to cite other interviews in which Elden had complained about not being properly compensated for the iconic image while everyone else ‘involved in the album has tons and tons of money.’
Shocking: In court documents, Elden said that ‘defendants failed to take reasonable steps to protect [him] and prevent his widespread sexual exploitation and image trafficking.’ Kurt Cobain is pictured above
Courtney Love, left,who was married to Kurt Cobain between 1992 and 1994, is among the 10 defendants which have been named in the suit; Dave Grohl, right, (pictured performing in Chicago) went onto form The Foo Fighters after Cobain’s death in 1994
While the extremely low compensation for the original shoot has been raised as an issue, it was not the basis of Elden’s lawsuit.
As part of its response, Marsh Law said in its statement: ‘What we cannot continue to ignore is that the image of Elden, at four months old, is actively distributed and constitutes the legal definition of child pornography according to the Dost factors.’
‘Child pornography is a ‘forever crime’ – any distribution of or profits earned from any sexually explicit image of a child not only creates longstanding liability but it also breeds lifelong trauma. This is common for all of our clients who are victims of actively traded child pornography, regardless of how long ago the image was created.’
Marsh Law went on to say that the statute of limitations cited by Nirvana’s lawyers is irrelevant as long as the image in question continues to be disseminated. In their view, federal law ‘makes it clear that the statute of limitations restarts claims each time UMG reproduces, distributes, or possesses Spencer’s Nirvana cover image.’
‘Similarly, the statute of limitations … claims restart each time any defendant receives any ‘thing of value’ for the image. For the argument on the statute of limitations to hold water, Nirvana and UMG would have had to cease distribution of, and forfeit profits from, the image in August of 2011. They are welcomed to do so today forward.’
In interviews with Variety and other publications last year, Elden’s lawyers said that victims of child pornography or other kinds of abuse often take decades to come to terms with the fact that they were abused, and that their client is no different in this regard and should not be held to earlier statements in which he expressed positive or ambivalent feelings about the ‘Nevermind’ cover.
‘I think when something like this happens, the only person who can understand what it’s like to be in Spencer’s shoes is Spencer,’ one of his attorneys, Maggie Mabie, told Variety in August.
Marsh Law added: ‘That being said, these are not new feelings. He has always felt invaded. Even as a child, Spencer expressed that this was uncomfortable, and he doesn’t like the way that this puts him in a place where he really can’t [protest] that it’s an invasion of his own privacy, because people come to defend the band, as opposed to protect Spencer.’
‘So the reason it comes now, as opposed to times before, is really because, while Spencer’s had this cause of action all the while, it takes a very long time when you are a victim of these kinds of image abuse crimes to really understand how you’ve been damaged. And it takes a quite a long time for a lawsuit like this to develop when you have sophisticated defendants.’
‘This juncture in his life has probably come about because he’s become an adult, and he’s understanding the way that this has affected him. When you’re a kid, your brain isn’t developed enough to fully understand your trauma.’
In his earlier suit, Eldon said Nirvana and the estate of Kurt Cobain ‘trafficked’ his image as a naked baby and claimed $2.5million in damages for being ‘exploited as a minor’.
In the suit, filed in Los Angeles federal court, Elden said his parents never gave their release in writing for the photos, and were not paid.
This is despite 2008 reports that photographer Kirk Weddle paid Elden’s father Rich $200 for 15 seconds of work to appear in the snap, according to NPR.
Vast sum: Elden is asking for $150,000 from each of 10 defendants named in the suit, which could total around $1.5 million (Nirvana are pictured performing)
Elden, from Los Angeles, said that his ‘identity and legal name are forever tied to the commercial sexual exploitation he experienced as a minor which has been distributed and sold worldwide from the time he was a baby to the present day.’
He alleged that band members, record companies and creative personnel had ‘trafficked’ his image for profit, according to court documents reviewed by CBSLA.
In the initial suit, Elden asked for $150,000 from each of 17 defendants, though that number was reduced to 10 in a second filing.
He said that ‘defendants failed to take reasonable steps to protect [him] and prevent his widespread sexual exploitation and image trafficking.’
Elden’s legal team said in the suit that ‘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.’
They added that ‘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.’
According to court docs reviewed by TMZ, the band had promised that a sticker would be placed on the area of the baby’s genitals, but didn’t place it on the cover.
In 2008, Spencer’s father Rick, who was friends with Weddle, spoke to NPR and claimed that the photographer did not let on that he was taking pictures for the Nirvana album.
And Rick said that after the shoot, his family forgot all about it until two months later when Geffen Records sent Spencer a platinum album and a teddy bear.
Nevermind famous ushered in the grunge era and sold more than 30 million albums for Geffen Records.
The album was also nominated for a Grammy Award for Best Alternative Music Performance, and it’s title single Smells Like Teen Spirit earned nods for Best Rock Song and Best Hard Rock Performance.
Nirvana went onto release their third album, In Utero, in 1993, and the following year they found success once again with their acclaimed album based on their MTV Unplugged set in New York.
The band performed their final concert as a trio in Munich in Germany on March 1, 1994, and just three days later Cobain’s wife Courtney Love found the musician unconscious in their hotel room, forcing the rest of the tour to be cancelled.
In the latter weeks Cobain’s struggles with heroin addiction began to resurface, and a week after leaving rehab, on April 8, 1994, he was found dead of a self-inflicted shotgun wound at his home in Seattle.
Soon after Cobain’s death Nirvana disbanded, and Grohl has gone onto form the band Foo Fighters.
Children on Album covers: Where are they now?
Led Zeppelin, Houses of the Holy
The six children on the iconic 1973 Zeppelin album shot on Giant’s Causeway, Northern Ireland, are actually just a collage of two siblings Stefan and Samantha Gates who were five and seven at the time.
Now Stefan is a cookery TV star, most notably for BBC2’s Cooking In The Danger Zone. He has admitted to finding the album’s artwork ‘disturbing and haunting’.
Placebo, debut album
The 12-year-old boy in that red jumper tugging his cheeks is David Fox, an unemployed chef from Scunthorpe, Lincolnshire.
His cousin was a professional photographer, and he took some photographs of my family for his personal use.
claims the album’s success caused him to be bullied at school and ostracised from his peers. He took a year out of school, eventually dropping out of his GCSEs as a result.
Vampire Weekend, Contra
The preppy-looking girl on Vampire Weekend’s 2010 album is former model Ann Kirsten Kennis in a Polaroid from 1983.
The band loved the image but it came as a surprise to Kennis who only discovered her face was being used after her daughter bought the album home. The then 53-year-old who lives in Connecticut, sued photographer Tom Brody and the band for $2million. The band later settled out of court.
The girl on the swing from KoRn’s self-titled album was six years old in 1994 when the picture was taken.
The cover art shows a little girl alone on a swing set and a mischievous looking shadow of a man with tools on the ground.
The girl was Justine Ferrara, who doesn’t remember much from the shoot except that man was actually nice for covering the light in front of her. The tools were added to the picture in post processing.
Source: Read Full Article