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Nirvana Fires Back In ‘Nevermind’ Naked Baby Lawsuit, Says Case Was Filed Too Late

The band said the case has a fatal-flaw: It was filed years after the statute of limitations had run out, by a man who had long embraced the image.

Nirvana is firing back at a recent lawsuit that claims the band violated child pornography laws with the iconic image of a nude baby on the cover of Nevermind, blasting the case as “not serious” and saying it was filed years too late.

The lawsuit made headlines in August when it was filed by Spencer Elden, the now-30-year-old man who appeared in the image as a baby. He claims that the 1991 album cover — one of the most famous in rock and roll history — amounted to “commercial sexual exploitation” of a minor.

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In the band’s first formal response to the lawsuit, Nirvana said Wednesday that Elden’s case has a fatal-flaw: It was filed years after the statute of limitations had run out, by a man who had long embraced the image.

“Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby,’” the band wrote, noting that Elden had “re-enacted the photograph in exchange for a fee” multiple times and has the name of the album tattooed on his chest. The band even accused Elden of having “used the connection to try to pick up women,” citing a media interview in which he recounted such a story.

Federal child pornography law has a 10-year statute of limitations, which begins running from the point when a victim “reasonably discovers” the problem — meaning either the violation itself or the harm caused by it. For Elden, Nirvana said, that would mean he only discovered the image in 2011.

“But the Nevermind cover photograph was taken in 1991. It was world-famous by no later than 1992,” the band wrote. “Long before 2011, as Elden has pled, Elden knew about the photograph, and knew that he (and not someone else) was the baby in the photograph. He has been fully aware of the facts of both the supposed ‘violation’ and ‘injury’ for decades.”

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 an edgy critique of greed and capitalism. But in a lawsuit filed in August, Elden claimed it was something else entirely: the kind of “lascivious” display of a minor’s genitals that’s prohibited under federal child pornography statutes.

“Spencer’s true identity and legal name are forever tied to the commercial sexual exploitation he experienced as a minor which has been distributed and sold worldwide from the time he was a baby to the present day,” he wrote at the time.

In addition to Nirvana’s corporate entity, the lawsuit also named Kurt Cobain’s estate, Universal Music Group, Dave Grohl, and a number of other companies and individuals.

In a statement to Billboard on Thursday, an attorney for Elden said the statute-of-limitations argument would fail because Nirvana and UMG had continued to profit from the allegedly-offending image.

“Nirvana and UMG’s motion to dismiss focuses on their past conduct and ignores their ongoing distribution, especially with the 30-year Nevermind anniversary and profit margins,” said Robert Y. Lewis of the Marsh Law Firm. “The statute of limitations restarts claims each time UMG reproduces, distributes, or possesses Spencer’s Nirvana cover image.”

Wednesday’s filing is likely only the first salvo in Nirvana’s efforts to dismiss the lawsuit. If unsuccessful, the band will likely make a more basic argument: that the image does not amount to child pornography at all.

Child pornography laws cover sexual images of minors, but they typically do not apply to more innocent photos of nude children, like an image of a child at home in the bathtub. The band will argue that the image is clearly more like the latter.

“Elden’s claim that the photograph on the Nevermind album cover is ‘child pornography’ is, on its face, not serious,” the band wrote Wednesday, hinting at such future arguments. “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.”