Spencer Elden, who appeared on the cover of Nirvana’s 1991 album Nevermind as a baby, has lost his lawsuit claiming that the image constituted child sexual abuse.
In the suit Elden claimed that the album cover, which depicts him at four months old and was taken by a family friend, had caused him “permanent harm” and a lifelong loss of income-earning capacity”.
The family were originally paid around $200 (£173) for use of the image. Elden’s suit claimed: “Defendants knowingly produced, possessed and advertised commercial child pornography depicting Spencer.”
Elden said that as a child, he had been unable to consent to the photo being used and sought £130,000 in damages.
US judge Fernando Olguin dismissed the case with prejudice, ruling that it was filed past the 10-year statute of limitations.
Elden first filed against Dave Grohl, bassist Krist Novoselic, Courtney Love and the estate of Kurt Cobain, photographer Kirk Weddle and several record labels in 2021. The suit was thrown out after he missed a deadline to respond to the defendants’ motion to dismiss, which described Elden’s claim as “not serious”.
It continued: “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.”
Elden refiled in January 2022. Following Olguin’s ruling, he cannot refile again, though he intends to appeal.
A defence lawyer welcomed the ruling, describing the case as “meritless”. The defendants had previously argued that Elden had “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’”, including recreating the image for the album’s 15th and 25th anniversaries. Elden also has a tattoo of the word Nevermind on his chest.
In 2015, he told the Guardian: “It is a weird thing to get my head around, being part of such a culturally iconic image. But it’s always been a positive thing and opened doors for me. I’m 23 now and an artist, and this story gave me an opportunity to work with Shepard Fairey for five years, which was an awesome experience.”