The man who appeared as a nude baby on the cover of Nirvana’s album Nevermind has refiled his lawsuit claiming that the iconic image violated child pornography laws, less than two weeks after it was dismissed by a federal judge.
Citing a blown deadline, the judge dismissed the case last week, but he gave Spencer Elden – the now-30-year-old man featured on the 1991 album cover – “one last opportunity” to refile his lawsuit “if plaintiff still wishes to pursue this action.”
On Wednesday, attorneys for Elden did so, once again accusing the band of breaching federal child pornography laws by using “a lascivious exhibition of Spencer’s genitals” for commercial gain.
“The focal point of the Nevermind album cover is Spencer’s genitals and pubic area,” Elden’s attorneys wrote in the new complaint, adding that the image had been edited to make it “sexually suggestive” and had been intended to “elicit a sexual response.”
Originally released Sept. 24, 1991, Nevermind reached the top spot on the Billboard 200 in January 1992 and ultimately spent 554 weeks on the chart. The album has sold more than 30 million copies and is widely considered one of the most influential in the history of popular music.
The album’s cover — a nude infant swimming in a pool chasing after a dollar attached to a fishhook — has long been interpreted as a critique of greed and capitalism. But in an August lawsuit, Elden claimed it was a “commercial sexual exploitation” of an unconsenting minor. The case named Nirvana, Kurt Cobain’s estate, Universal Music Group, Dave Grohl, and others as defendants.
Thursday’s new complaint largely echoed those same allegations. But it also added new material that’s aimed squarely at refuting Nirvana’s recent arguments that the case is fatally-flawed.
In December, Nirvana asked a judge to dismiss the case on the grounds that Elden had waited far too long to sue. Under the federal statutes at issue, such claims face a 10-year statute of limitations – and Nevermind was released more than 30 years ago.
In their new complaint, attorneys for Elden argued that the statute-of-limitations does not prohibit him from filing his case, since Nirvana and UMG had continued to profit from the allegedly-offending image. They cited a 2021 anniversary release of the album, featuring the same cover.
“Although the image of Spencer on the Nevermind album cover was created over thirty years ago, during the ten years preceding the filing of this action and since [defendants] continued to knowingly possess, transport, reproduce, advertise, promote, present, distribute, provide, and obtain the commercial child pornography on the cover of Nirvana’s Nevermind album,” Elden’s lawyers wrote.
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