Nirvana have filed an official response to a lawsuit from the man who was photographed as a baby for the cover of ‘Nevermind’.
Spencer Elden, 30, is suing the band over the photo of him as an infant, in which he appears naked and swimming after a dollar bill in a swimming pool. He has claimed that he has suffered “lifelong damages” from the image and that it is “commercial child sexual exploitation” and child pornography.
Representatives for Nirvana have now issued a statement refuting the claims in the lawsuit, saying it is “not serious” and is beyond the statute of limitations. The lawsuit would only apply within 10 years of him finding out he was the baby on the album cover and the group rejected the idea that he had only discovered this in the last decade.
“But the ‘Nevermind’ cover photograph was taken in 1991,” the statement read, as Billboard reports. “It was world-famous by no later than 1992. Long before 2011, as Elden has pled, Elden knew about the photograph and knew that he (and not someone else) was the baby in the photograph. He has been fully aware of the facts of both the supposed ‘violation’ and ‘injury’ for decades.”
It continued to cite occasions where Elden seemingly embraced being on the cover. “Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’,” claimed the band’s representatives. It noted that Elden has recreated the photo on more than one occasion and has ‘Nevermind’ tattooed on his chest.
In response to the man’s claims that the photo is equal to child pornography, the band said it was “not serious”. “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,” they wrote.
The original lawsuit was filed in August 2021, with Elden seeking $150,000 (£112k) in damages from drummer Dave Grohl, bassist Krist Novoselic, the estate of Kurt Cobain, album artwork photographer Kirk Weddle and designer Robert Fisher. The labels responsible for the album’s release, including Universal Music and Geffen Records, were also named.
In November, Elden made amendments to the lawsuit, alleging that he had also been styled and photographed as Playboy founder Hugh Hefner. The amended claim also brought up unearthed journal entries allegedly made by Cobain, which present a “sketch [of] the album cover in a sexual manner, with semen all over it”, and removed former Nirvana drummer Chad Channing’s name from the suit.
Nirvana (Kurt Cobain, Krist Novoselic, Dave Grohl) photographed in 1992. Credit: Gutchie Kojima/Shinko Music/Getty Images
As well as damages, Elden wants the album art to be altered for any future re-releases of the record. “If there is a 30th-anniversary re-release, he wants for the entire world not to see his genitals,” his lawyer Maggie Mabie said. A 30th-anniversary reissue was released in November, using the original cover art.
Grohl previously said he had “many ideas” of how the cover could be changed, depending on the results of the lawsuit. “We’ll let you know,” he said. “I’m sure we’ll come up with something good.”
A number of legal experts, meanwhile, have said that they believe the case is likely to be dismissed. Entertainment litigation partner Bryan Sullivan told The Hollywood Reporter that there being no release form, as Elden claims, “does not mean he has a claim for child pornography”.
“As to the right of privacy, you can waive it by your actions or by his parents’ actions in allowing him to be photographed,” he said.
Entertainment lawyer Andrew Brettler added that some of Elden’s past actions could damage his case, saying: “What I think really damns their case is the fact that this kid sat for all these interviews and re-created the album art.”