A judge has dismissed a lawsuit that Spencer Elden – the man featured on Nirvana’s Nevermind album artwork as a baby – filed against the group last summer.
Spencer was four months old when a photo of him swimming nude underwater was taken and subsequently used as the artwork for Nirvana’s 1991 album.
Now 30, Spencer filed a suit naming 15 parties – including the surviving members of Nirvana, Kurt Cobain’s widow Courtney Love and photographer Kirk Weddle – which branded the Nevermind cover image “commercial child pornography”.
In December, a motion was filed to dismiss the lawsuit, claiming the argument that the Nevermind cover constituted child pornography “is is, on its face, not serious”, and pointing out that Spencer had previously benefited from his reputation of being “the Nirvana baby”.
Lawyers representing Dave Grohl, Krist Novoselic, Courtney Love and Kirk Weddle argued: “[Spencer] has re-enacted the photograph in exchange for a fee, many times; he has had the album title... tattooed across his chest; he has appeared on a talk show wearing a self-parodying, nude-coloured 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.”
In addition to this, they said that the statute of limitations on the matter expired in 2011, meaning Spencer was a decade too late to sue.
Spencer Elden and his legal team had until 30 December to respond to Nirvana’s lawyers’ motion, but did not do so before the deadline, meaning Judge Fernando M Olguin has now dismissed the case “with leave to amend”.
Spencer now has until 13 January to refile the case with changes made.
In his original lawsuit, it was claimed that Spencer had suffered “lifelong damages” as a result of the Nevermind cover, including “extreme and permanent emotional distress with physical manifestations”.
According to legal documents: “The images exposed Spencer’s intimate body part and lasciviously displayed Spencer’s genitals from the time he was an infant to the present day.”
Spencer has recreated the Nevermind cover on several occasions in recognition of the album’s 10th, 20th and 25th anniversaries – always wearing a swimsuit – but has expressed mixed opinions about his involvement in it in past years.
In 2015, he wrote in The Guardian he was “glad” his photo had been chosen for the cover, stating: “It is a weird thing to get my head around, being part of such a culturally iconic image. But it’s always been a positive thing and opened doors for me.”
A year later, he told Time magazine: “It’s hard not to get upset when you hear how much money was involved… I go to a baseball game and think about it: ‘Man, everybody at this baseball game has probably seen my little baby penis,’ I feel like I got part of my human rights revoked.”
In 2016, he recreated the cover for the New York Post, telling the newspaper: in an accompanying interview: “Recently I’ve been thinking, ‘What if I wasn’t OK with my freaking penis being shown to everybody?’ I didn’t really have a choice.”