The man who was pictured as a baby on the cover of an iconic Nirvana album is appealing his lawsuit against the band. A judge last week dismissed the lawsuit, which accused the grunge rock group of child pornography.
Los Angeles artist Spencer Elden, now 31,in U.S. District Court for the Central District of California in 2021, alleging that appearing naked as a 4-month-old infant on the cover of the 1991 album "Nevermind" caused him emotional distress and lost-learning capacity as an adult.
Elden attempted to sue former band members Krist Novoselic, Chad Channing, David Grohl and Robert Fisher; the estate of Kurt Cobain; his widow Courtney Love and others for $150,000 each.
Elden's lawsuit claimed the musicians "commercially marketed Spencer's child pornography and leveraged the shocking nature of his image to promote themselves and their music at his expense," according to the lawsuit.
Motion to dismiss unopposed
More than 30 million copies of the album on which Elden is depicted swimming naked in a pool, reaching for a superimposed dollar bill on a fish hook, have been sold worldwide.
United States district Judge Fernando M. Olguin ruled Friday that Elden had waited too long to file the lawsuit given that he had learned about the album cover more than 10 years ago.
The judge in January dismissed the case after attorneys for Elden missed a deadline to file an opposition to the defendants' motion to dismiss.
Elden's lawyers had been allowed to file a second amended complaint concerning "alleged defects" in the defendants' motion to dismiss.
Nirvana's attorneys' motion to dismiss argued that Elden had spent three decades profiting from his depiction on the album cover.
"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," they said.
"They will embrace their accuser for some time"
Attorneys for Elden said the judge's ruling was made based on "a misunderstanding of the statute of limitations."
"This unprecedented interpretation of Masha's Law contravenes over fifteen years of well-settled precedent and the legislature's intended purpose of the law," Marsh Law Firm attorneys said in a statement.
Masha's Law is a 2005 federal law that gives victims of child pornography the right to sue parties who produce, distribute, or possess such images and materials. Its statute of limitations expires after the victim turns 28.
"Quite simply, under the statute and the caselaw the ongoing distribution of Spencer's child pornography on the Nevermind album cover repeatedly violates the baby depicted on the cover even though he is now all grown up," the statement said.
The attorneys added: "The Nevermind cover was created at time when Spencer was a baby, and it is impossible for him to age out of this victimization while his image remains in distribution."
Bob Lewis, one of Elden's attorneys, argues that Elden will be victimized as long as the image on the album cover continues to be distributed.
While attorneys for Nirvana have argued that Elden has embraced his depiction on the album and even profited from it by re-enacting the same pose as an adult, Lewis told CBS MoneyWatch that this behavior is consistent with how sex abuse victims deal with trauma.
"They oftentimes will embrace their abuser for quite some time, so it's not uncommon for someone in his situation to be confused about what happened to him and not know exactly how to handle it," Lewis said. "But in recent years, he's come to terms with that and understands that having his pictures published like this has done him great harm, so we're suing to prevent that."
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