The surviving members of Nirvana and their legal team have officially responded to the “Nevermind” album cover lawsuit, and have filed for it to be dismissed. Earlier this year, Spencer Elden filed for damages for the use of his image stating the image was child p*rn*graphy. Elden was four months old when the original image was taken. By 1992, the photo, which was used for the band’s landmark album Nevermind, was instantly recognizable.
Nirvana released in their official response on Wednesday December 22nd:
“Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.’ He has reenacted the photograph in exchange for a fee, many times; he has had the album title ‘Nevermind’ tattooed across his chest; he has appeared on a talk show wearing a self-parodying, nude-colored onesie; he has autographed copies of the album cover for sale on eBay; and he has used the connection to try to pick up women.”
The band also states that the statute of limitations has more than run out. Elden would have had to be unaware that he was on the cover of the album until after 2011.
“The Nevermind cover photograph was taken in 1991. 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.
In addition to his child p*rn*graphy claim, Elden has alleged that the creation of the photograph for the album cover art entailed the sex trafficking of Elden when he was a baby. Setting aside that this premise is absurd, the statute Elden invokes to cover conduct in 1991, became effective on December 19, 2003 and has no retroactive application to conduct by a defendant that pre-dates its effective date.”
In the original filing, Elden had four points that he was trying to get across:
- Neither he nor a legal guardian consented to him being photographed
- The image constitutes child p*rn*graphy
- The band failed to follow through on a promise to cover his genitals on the album cover with a sticker
- He has suffered lifelong damages from the photo
Most of these have been ruled out alone by his behavior and trying to profit off of the image for the entirety of his adult life. Which is what the response is trying to illustrate to the court. The amended suit where Elden tried to use some of the late Kurt Cobain‘s journal entries to show that the intent of the cover was to illicit a strong sexual response don’t seem to be helping his case either.
In his amendment, they say:
“Undated journals written by Cobain sketch the album cover in a sexual manner, with semen all over it. In several instances, the journals describe Cobain’s twisted vision for the Nevermind album cover, along with his emotional struggles: ‘I like to make incisions into the belly of infants then f**k the incision until the child dies.’”
Amended Lawsuit
There’s no denying that those journal entries are gross but they seem to be responding to it by saying that they had no effect on the actual cover image.
“In addition to his child p*rn*graphy claim, Elden has alleged that the creation of the photograph for the album cover art entailed the sex trafficking of Elden when he was a baby. Setting aside that this premise is absurd, the statute Elden invokes to cover conduct in 1991, became effective on December 19, 2003 and has no retroactive application to conduct by a defendant that pre-dates its effective date.”
Nirvana’s Filed Response
Spokespersons for the band are confident the case will be dismissed.
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