As previously reported, Spencer Elden, who as a baby was featured on the album artwork of Nirvana’s classic album Nevermind (Geffen) is suing the surviving members of the band and the estate of late frontman Kurt Cobain for Child Pornography charges and restituition. Now lawyers for Nirvana, Universal Music Group (UMG) and others named in the suit have filed a motion to dismiss the case, based on being “barred by the applicable statute of limitations.” This is following an mediation for settlement on December 13th and that apparently stalled. Accordign to Digital Music News, both sides were trying to settle.
“Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby,’” the firmly worded text proceeds. “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.”
After that, the 22-page-long filing elaborates that the child-pornography claim “has a ten-year limitations period and cannot reach an injury that Elden knew about before 2011.” And as “the statute of limitations for Section 2255 is expressly tied to the plaintiff’s knowledge of his or her victimization,” 30-year-old Elden’s action is barred, per the Nirvana defendants.
On the sex-trafficking front, in addition to the aforementioned statute of limitations argument, UMG and the other defendants state that the corresponding statute went into effect in 2003, and it contains “no retroactive application to conduct by a defendant that pre-dates its effective date.”
“As the law precludes Elden from advancing a private cause of action for sex trafficking under a statute that did not exist at the time of the alleged trafficking,” the text states, “he has no ability to pursue this claim—full stop.”
Lastly, following detailed examples (including interviews) that aim to demonstrate Elden’s longtime knowledge of the album cover, the filing for good measure takes aim at potential “violations of the child pornography statute that occurred on or after August 24, 2011, e.g., a mailing of a copy of the ‘Nevermind’ album after 2011” – though Elden “has not yet” made such an argument.
“Elden has alleged no facts, at all, about any barriers outside his control which prevented him from asserting a timely claim, and cannot plausibly allege any such facts to warrant tolling of the statute from 1995 to the time of filing, even if he were given leave to amend,” the defendants reiterate at the motion’s end. “Elden’s failure to timely pursue a sex trafficking claim within the limitations period bars it now, to the extent that it is not already dead on arrival.”
The complaint filed in Los Angeles federal court, since amended, which also names photographer Kirk Weddle and the various record companies behind the album’s release, Elden claims that his “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.”
According to the suit, the defendants “knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so. … Despite this knowledge, defendants failed to take reasonable steps to protect Spencer and prevent his widespread sexual exploitation and image trafficking.”
Elden claims that his parents never signed a release authorizing the use of the photos, which were taken in a Pasadena aquatic center in 1990. He alleges that the band promised to cover his genitals with a sticker, which was never incorporated into the album art.
“To ensure the album cover would trigger a visceral sexual response from the viewer, Weddle activated Spencer’s ‘gag reflex’ before throwing him underwater in poses highlighting and emphasizing Spencer’s exposed genitals,” the complaint states.
The suit further alleges the 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 provocative manner to gain notoriety, drive sales, and garner media attention, and critical reviews.”
Elden is seeking damages of either $150,000 from each of the 17 defendants or unspecified damages to be determined at trial, attorney fees, an injunction to prohibit all parties “from continuing to engage in the unlawful acts and practices described herein,” and a trial by jury.
“The permanent harm he has proximately suffered includes but is not limited to extreme and permanent emotional distress with physical manifestations, interference with his normal development and educational progress, lifelong loss of income earning capacity, loss of past and future wages, past and future expenses for medical and psychological treatment, loss of enjoyment of life, and other losses to be described and proven at trial of this matter,” the lawsuit states.
Elden’s parents were reportedly paid only $200 for the photos, and the shoot lasted around 15 seconds.