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Judge dismisses Nevermind baby artwork lawsuit for the final time

By | Published on Monday 5 September 2022

Nirvana - Nevermind (Censored)

 A US judge has again dismissed the legal claim against Nirvana by the man who, as a baby, appeared nude on the famous cover of their ‘Nevermind’ album. And this time there won’t be the option to file new proceedings in relation to this claim.

Spencer Elden sued Nirvana, their label and other people involved in creating the ‘Nevermind’ artwork in August 2021. Claiming that Elden’s guardians did not know how the nude baby photo would be used when it was originally taken, the lawsuit said that the defendants “knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so”.

Nirvana and the other defendants quickly got busy trying to have the lawsuit dismissed. They argued that the case was without merit, in particular citing past interviews with Elden in which he had talked positively about appearing in the artwork, and also noting the various times the plaintiff has recreated the image as a teenager and adult, albeit wearing shorts. Those things, the band argued, suggested that his appearance in the photo on the cover of ‘Nevermind’ had not damaged Elden in the way his lawsuit claimed.

That said, core to the motion for dismissal were timings. With the specific laws Nirvana et al were accused of violating, there is a ten year statute of limitations. That doesn’t mean Elden would have had to sue within ten years of the photograph being taken, but – technically speaking – he should have gone legal within ten years of his eighteenth birthday. So the deadline for filing the lawsuit was 2019.

The Elden side initially missed a deadline for responding to the motion for dismissal, so it was granted. However, the judge hearing the case said Elden could resubmit his lawsuit addressing the statute of limitation issues that the defendants had raised, which he then did.

Elden’s lawyers said that Nirvana and their label continued to exploit the ‘Nevermind’ image, including on a 30th anniversary reissue of the album last year. Therefore Elden had continued to suffer from the distribution of the artwork over the last ten years, within the statute of limitations.

But the judge has now rejected those arguments, concluding that the Elden team’s position would allow him to sue Nirvana indefinitely, thus rendering the statute of limitations redundant. And this time Elden isn’t given the option to re-file.

Responding to that decision, a legal rep for the defendants, Bert Deixler, told Reuters: “We are pleased that this meritless case has been brought to a speedy final conclusion”.