The Nirvana camp have filed a motion to dismiss the current lawsuit filed against them by Spencer Elden, the now 30-year-old man who was photographed as a four-month-old boy for the iconic cover of the band’s 1990 album, Nevermind.
Elden filed a suit in August claiming that neither he nor his legal guardians consented to the photo; that the band failed to make good on a promise to cover his penis with a sticker; that he has been sexually exploited; and that he has suffered lifelong damages as a result of the image. He’s seeking $150,000, at minimum, from each of the defendants named in his suit, which would total a minimum of $2,550,000. Additionally, Elden is seeking legal fees and an injunction, which would prevent his penis from appearing on all future pressings of the album’s cover (although Elden’s opportunity to stop the photo from gracing the packaging of the 30th anniversary super-duper-extra-special deluxe reissue has passed — it was released on November 12).
An amendment to the suit filed in November dropped former Nirvana drummer Chad Channing (who left Nirvana in 1990 over a year before Nevermind‘s release), Warner Music, and Heather Parry and Guy Oseary (former managers of Cobain’s estate) as defendants. But the amendment also presented additional allegations and context intended to prove that the band always intended the image to be sexual in nature.
In 2007, Elden claimed that his parents, Renata and Rick Elden, were paid just $200 for the photo. Still, he has, in the past, embraced his role in rock history, getting “Nevermind” tattoed across his chest and participating in a recreation of the album cover photo shoot in 2016.
Now the defendants — UMG Recordings, Inc., Nirvana L.L.C., Kurt Cobain, Courtney Love (as executor of the Estate of Kurt Cobain), Nirvana members Krist Novoselic, Dave Grohl and the album’s photographer Kirk Weddle — filed a motion to dismiss the lawsuit on December 22 in a California court. A passage in the motion reads:
“The baby in the photograph is now a thirty-year-old man, the plaintiff, Spencer Elden. 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 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 parties also argued that the photo does not fall under the umbrella of child pornography because it is not “coupled with other circumstances that make the visual depiction lascivious or sexually provocative.” Instead the motion argues that the photograph “evokes themes of greed, innocence, and the motif of the cherub in Western art.”
You can find a copy of the full motion to dismiss here. A court date for the motion is set for January 20, 2022.
[via The PRP]