On Tuesday, a California judge granted a motion to dismiss a fairly new child pornography lawsuit filed by Spencer Elden, the now 30 year-old man who famously appeared as a baby on the classic Nirvana album “Nevermind.”

Released in 1991, “Nevermind” was the second studio album by Nirvana whose iconic album cover has become engrained into the minds of billions of people throughout the world.

The lawsuit was brought against members of the former band (“Defendants”) back in August 2021, also naming Kirk Weddle, the photographer from that shoot and Robert Fisher, the graphic designer, who were both tasked with shooting the cover photo, as well as music executives.

Nirvana comprised of members Dave Grohl, Chad Channing, Krist Novoselic, and the late Kurt Cobain. The Complaint specifically alleges that Cobain, who died in 1994 (age 27), purposefully chose the image of Elden. Cobain’s estate executor has been named in the lawsuit.

The band filed a Motion to Dismiss on December 22, giving Elden and his legal team 30 days to file an opposition, but according to legal documents obtained by PopWrapped, Elden’s team missed the deadline.

Brief Recap

In the initial Complaint, Plaintiff argues that Nirvana knowingly produced, possessed, and advertised “commercial child pornography” when they put a nude photo of him as a baby on the cover of their album “Nevermind.”

In a copy of the Complaint which was previously obtained by PopWrapped, Plaintiffs argue that “…the defendants intentionally commercially marketed Spencer’s child pornography and leveraged the shocking nature of his image to promote themselves and their music at his expense.”

The document continues by stating that “Defendants used child pornography depicting Spencer as an essential element of a record promotion schem ecommonly utilized in the music industry to get attention, wherein album covers posed children in a sexually provocative manner to gain notoriety, drive sales, and garner media attention, and critical reviews.”

Elden requested a jury trial in addition to damages of $150,000 from each of the 17 defendants, which also include record companies Universal Music Group, Geffen, Warner and MCA Music.

In their Motion to Dismiss, Defendants argued that Elden has profited from being on the album cover as a baby, and has received benefits from it through adulthood.

“Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.’ He has re-enacted 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 Defendants say in their legal filings.

What’s the Legal?

Images of “child pornography” are the exception to any First Amendment defense, because it is evidence of a crime that the victim cannot yet appreciate nor understand.

Defining “Child Pornography”

Under federal law (Title 18, Section 2256, United States Code), child pornography is defined as “any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age).”

“Visual Depiction”

A “visual depiction” includes photographs, videos, digital or computer generated images of an actual minor child, and images created, adapted, or modified, but appear to depict an actual minor child.

Sexual Activity NOT REQUIRED

Specifically, Section 2251 of the U.S. Code does not require that the image depict a child engaged in a sexual activity – rather, any picture of a naked child may constitute illegal child pornography if it is sufficiently sexually aggressive.

The law continues by prohibiting the “production, distribution, reception, and possession of an image of child pornography using or affecting any means or facility of interstate or foreign commerce.”

Now What?

Since Elden’s legal team failed to file its opposition, the oral argument that was originally scheduled for January 20 was vacated by the Court.

However, in a strange, questionable move by Judge Olguin, the Court granted “one last opportunity” to Elden’s legal team to file an amended complaint by January 13 – otherwise the case will be tossed out with no opportunity to come back. If Elden’s legal team files a second amended complaint, both parties will meet on January 20.

“In accordance with the court’s order we will be filing a Second Amended Complaint very soon,” Elden’s attorneys from the Marsh Law Firm said in a statement to USA TODAY Tuesday. “We are confident that Spencer will be allowed to move forward with the case.”

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