Spencer Elden, now 30 years old, continues to allege that the cover image used as the cover of 1991’s Nevermind, which depicts a four-month-old Elden underwater with exposed genitals, was meant to be sexual in nature and “trigger a visceral sexual response from the viewer.”
However, the Nirvana camp — including surviving band members Dave Grohl and Krist Novoselic, as well as Kurt Cobain’s widow, Courtney Love — want the lawsuit thrown out, calling it “not serious” and stating that is was filed years too late in a motion to dismiss the lawsuit submitted on Wednesday (December 22nd).
It’s the first time the band and the other defendants have formally responded to the lawsuit. They state that the suit was filed years after the federal statute of limitations had run out, adding that Elden had embraced the image in the intervening years.
“Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’,” reads the motion. “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 motion adds, “Elden’s claim that the photograph on the Nevermind album cover is “child pornography” is, on its face, 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.”
Federal child pornography law has a 10-year statute of limitations, beginning when a victim “reasonably discovers” the violation itself or the harm caused by it. According to Nirvana, that would mean Elden only discovered the image in 2011.
“But the Nevermind cover photograph was taken in 1991,” state the defendants, which also include Universal Music Group and Nevermind photographer Kirk Weddle. “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.”
The motion further argues, “In addition to his child pornography 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.”
Elden recently amended the lawsuit to include disturbing entries from Kurt Cobain’s journal in attempt to prove the cover image was conceived to be intentionally pornographic in nature. Previously, lawyers and pundits weighing in on the case described Elden’s lawsuit as “frivolous” and likely to be dismissed.
Read the full motion to dismiss the lawsuit here.