Lawyers for legendary grunge rock band Nirvana have asked a court to dismiss a lawsuit from Spencer Elden, the now-30-year-old man who was pictured nude as an infant on the cover of the band’s 1991 album Nevermind.
Elden sued in August, claiming that the band’s use of his image—taken when he was 4 months old—was “child pornography” and “trafficking” whose publication affected him for life. He has sued the band for that, alleging that they had made millions off of his image while Elden hasn’t seen any profit from it.
But the band’s lawyers say that Elden’s lawsuit should be dismissed, adding that he had also used his picture on the album to “pick up women.”
The lawsuit concerns one of the most famous photographs of all time. The photo shows a naked baby floating in a swimming pool, while a dollar bill dangles from a fishhook in the foreground.
In a Dec. 22 court filing, the band’s lawyers wrote, “Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.'”
The lawyers wrote that Elder had re-enacted the photograph in exchange for money, many times. Elder had the album title tattooed across his chest, had autographed copies of the album cover for sale on eBay and had “used the connection to try to pick up women,” they added.
The filing noted that in a 2008 MTV interview, the then-17-year-old cover model joked that he had used “Nevermind-inspired pickup lines on girls, such as: ‘You want to see my penis … again?'”
In a 2011 interview, Elden said that he had thought a lot about having been seen naked by millions of people.
“I have thought about that,” Elden said, according to the band’s lawyers’ court filing. “It’s kind of like being a secret porn star, but not really. But it’s not even porn! It’s more like a Farrah Fawcett poster.”
In their court filing, the band’s lawyers said that Nirvana’s alleged violation of the federal child pornography and sex trafficking laws had passed each law’s 10-year statutes of limitations.
“The complaint was filed on August 24, 2021,” the filing states. “But the
‘Nevermind’ cover photograph was taken in 1991. It was world-famous by no later
than 1992. Long before 2011 [when the statute of limitations for the porn and trafficking charges had expired].”
“Elden knew about the photograph, and knew that he (and not someone else) was the baby in the photograph,” the filing continued. “He has been fully aware of the facts of both the supposed ‘violation’ and ‘injury’ for decades.”
The band’s lawyer’s court filing also states that the image and its widespread sale constitute neither child pornography nor child sex trafficking. The image’s nudity lacks a “lascivious or sexually provocative” context to make it pornographic, the lawyers wrote.
The image also wasn’t used to sell the then-young model into any sexual activities, the lawyers argued. Thus, the image doesn’t constitute trafficking, they wrote.