By Gary Symons
TLL Editor in Chief
A California court has ruled against a man who claims the cover artwork on Nirvana’s 1991 grunge rock album Nevermind is child pornography.
The ruling comes after Spencer Elden, now 31, sued the band over allegations of “commercial child sexual exploitation,” after his image was used on the album’s cover.
That cover is considered among the most iconic in rock music history, and it was also an album that remains a top seller three decades after its release.
The ruling did not actually cover the argument at hand, however, as the judge ruled Elden had filed his complaint after the 10-year statute of limitations had expired.
“Accordingly, plaintiff’s action will be dismissed without leave to amend,” said Fernando M. Olguin, United States District Judge for the Central District of California.
Elden’s lawyer told CNN he plans to appeal the dismissal. He would have been a youth without legal standing if he had tried to file the suit within the 10-year window.
The suit itself is focused on an image in which Elden appears as an infant, swimming underwater, with his eyes focused on a dollar bill. Elden’s family was paid around $200 for the image at the time, which was taken by a family friend, and was not originally taken for use on the album cover.
Typically, in cases involving a child, licensees can reach an agreement with the child’s parents or guardians for a variety of licensing deals, including for images, or for the child’s appearance in a film, show, or advertisement. However, because the case was resolved on the issue of the statute of limitations, these issues were not addressed in the ruling.
Elden said in his original complaint, filed in August last year, that the image was pornographic and that he has suffered lifelong damages due to it being published.
That complaint was dismissed, but Elden filed a second, amended complaint seeking damages for loss of wages, loss of earning capacity, expenses for past and future medical or psychological treatment, and for loss of enjoyment of life. He and his lawyers argued the image of the infant reaching for a dollar made the baby Elden look like a sex worker.
He also said that as a child, he had been unable to consent to the photo being used. In 2007 Elden told reporters he found it “kind of creepy that many people have seen me naked … I feel like the world’s biggest porn star.” In 2008, Elden told CNN that he was often asked to attend events as “the Nirvana baby.”