Nevermind baby’s child-porn lawsuit against Nirvana dismissed by judge

A federal judge yesterday dismissed the complaint filed against Nirvana by the man who appeared on the band’s Nevermind album cover when he was a baby. The plaintiff, Spencer Elden, will have one more chance to file an amended complaint.

Elden’s August 2021 lawsuit alleged that the picture of a naked baby in a swimming pool violated criminal child-pornography statutes and sought damages of at least $150,000 from each defendant. Named defendants include Nirvana, Universal Music Group, Warner Records, Courtney Love in her role as executor of frontman Kurt Cobain’s estate, band members Krist Novoselic and Dave Grohl, and others.

“[T]he court will grant defendants’ Motion and give plaintiff one last opportunity to amend his complaint,” said yesterday’s ruling by Judge Fernando Olguin in US District Court for the Central District of California. “In preparing the Second Amended Complaint, plaintiff shall carefully evaluate the contentions set forth in defendants’ Motion, including defendants’ assertions that plaintiff’s claims pursuant to 18 U.S.C. § 2255 and 18 U.S.C. § 1595 are time-barred. The court expects that defendants will agree to any amendment(s) that will cure the alleged defects.”

Elden’s attorney said he plans to file another amended complaint. “In accordance with the court’s order, we will be filing a Second Amended Complaint very soon,” Elden’s attorney, Robert Lewis, told Ars today. “We are confident that Spencer will be allowed to move forward with his case.”

Olguin’s ruling gave Elden until January 13 to file an amended complaint “attempting to cure, to the extent he believes is warranted by existing law, the alleged defects outlined in defendants’ Motion.”

10-year statute of limitations

Elden’s first amended complaint accused Nirvana and other defendants of “commercial child sexual exploitation of him from while he was a minor to the present day.”

“Defendants used child pornography depicting Spencer as an essential element of a record promotion scheme commonly utilized in the music industry to get attention, wherein album covers posed children in a sexually seductive manner to gain notoriety, drive sales, and garner media attention and critical reviews,” the complaint said.

The defendants filed a motion to dismiss the case with prejudice on December 22, saying that the lawsuit’s central claims are time-barred under both “the federal statute that permits victims of certain federal child pornography criminal offenses to sue for civil damages (18 U.S.C. § 2255)” and “the federal statute that permits victims of certain trafficking crimes to sue for civil damages (18 U.S.C. § 1595).” Section 2255 has a 10-year limit that “runs from the time the plaintiff reasonably discovers the later of either the ‘violation’ or the ‘injury’ that ‘forms the basis of the claim,'” while the “Section 1595 claim fails because the alleged conduct pre-dates the statute’s enactment,” defendants wrote.

Section 2255 also allows claims “not later than 10 years after the date on which the victim reaches 18 years of age,” but that date passed for Elden in February 2019. Section 1595 similarly prohibits complaints later than “10 years after the cause of action arose; or 10 years after the victim reaches 18 years of age, if the victim was a minor at the time of the alleged offense.”

Child-porn allegation “not serious”

Elden’s claims would fail on the merits even if they are not time-barred, Nirvana and other defendants wrote. “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 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,” the court filing said.

“Elden’s claim that the photograph on the ‘Nevermind’ album cover is ‘child pornography’ is, on its face, not serious,” the motion continued. “A brief examination of the photograph, or Elden’s own conduct (not to mention the photograph’s presence in the homes of millions of Americans who, on Elden’s theory, are guilty of felony possession of child pornography) makes that clear.”

The defendants’ motion also cited a Third Circuit precedent that said, “No one seriously could think that a Renoir painting of a nude woman or an innocuous family snapshot of a naked child in the bathtub violates the child pornography laws. Nudity must be coupled with other circumstances that make the visual depiction lascivious or sexually provocative in order to fall within the parameters of the [child pornography] statute.”

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