October 2022 | Volume 14, Issue 2

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“Man Shown as a Baby on Nirvana’s Nevermind Album Appeals Ruling in Band’s Favor”

According to the article, 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 recently dismissed the lawsuit, which accused the grunge rock group of child pornography.

Los Angeles artist Spencer Elden, now 31, filed the lawsuit 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.

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 fishhook, have been sold worldwide.

United States District Judge Fernando M. Olguin ruled 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 defendant's motion to dismiss. 

Elden's lawyers had been allowed to file a second amended complaint concerning "alleged defects" in the defendant's 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. 

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 a 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 said 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."

Discussion Questions

1. Is the subject case based on an intellectual property violation, a tort violation, or both? Explain your response.

Based on the facts presented in the article, this case appears based on tort law rather than intellectual property law. The plaintiff is not claiming a deprivation of his intellectual property rights; instead, his claim is based on emotional distress (a tort). Negligent infliction of emotional distress is based on the defendant’s failure to follow a “reasonable person” standard of care regarding a duty owed to the plaintiff, resulting in harm to the plaintiff. Intentional infliction of emotional distress is based on the defendant’s intent (or gross negligence or extreme recklessness that rises to the equivalent of intent) to cause harm to the plaintiff, resulting in actual harm to the plaintiff.

2. As the article indicates, United States District Judge Fernando M. Olguin ruled that the plaintiff, Spencer Elden, had waited too long to file the lawsuit given that he had learned about the album cover more than 10 years ago. What is the specific legal basis for Judge Olguin’s dismissal of the case? What is the best argument for the plaintiff on appeal?

Judge Olguin’s dismissal of the case is apparently based on expiration of the applicable statute of limitations period. A statute of limitations period is imposed on most causes of action to keep relevant evidence “fresh” and probative (of evidentiary value), hopefully translating into the realization of justice for all parties involved in the lawsuit. The best evidence for the plaintiff is that expiration of the statute of limitations has been “tolled” (delayed) because the album is still (and will likely always be) in print and for sale. Each “Nevermind” album still has the “child version” of Spencer Elden featured on its cover. The plaintiff’s attorney can argue that every day, the statute of limitations “refreshes” for as long as the album (more specifically, the album with Elden’s naked child picture on it) is for sale. A quick Amazon search of the Nevermind album conducted by your author revealed a 30th Anniversary version of the album with the picture of Spencer Elden still on the cover. There were similar controversies (i.e., the impropriety of child photographs) surrounding the Led Zeppelin album cover “Houses of the Holy” and the cover of English supergroup Blind Faith’s solo album.  

3. If Mr. Elden were allowed to take his case to trial, what would be his prospects in receiving a favorable verdict? Explain your response.

This is an opinion question, so student responses will likely vary. In your author’s opinion, this would be a difficult case for the plaintiff to win, even if Mr. Elden is ultimately allowed to argue his case to a jury. As the article indicates, according to the defense, Mr. Elden has embraced his depiction on the album and even profited from it by re-enacting the same pose as an adult. The counterargument of the plaintiff is that even though Mr. Elden might have appeared “okay” with the circumstances, he was actually “hurting inside.” Obviously, Mr. Elden’s perceived (by the jury) credibility would be a central component of the outcome of any trial addressing the matter.