Spencer Elden files to appeal court dismissal in ‘Nevermind’ child pornography lawsuit

Kurt Cobain of Nirvana performs live

Spencer Elden – best known as the baby on the cover art of Nirvana‘s ‘Nevermind’ album – has moved to appeal the court’s dismissal of his recent lawsuit against the band.

Back in September, a US District judge in Los Angeles ruled that the ‘Nevermind’ cover did not constitute child pornography. It was the third time Elden had attempted to sue the surviving members of Nirvana (Dave Grohl and Krist Novoselic) – as well as the estate of Kurt Cobain, photographer Kirk Weddle and numerous record labels – and with this latest ruling, the court told Elden he would not be allowed to file a fourth lawsuit.

At the time, lawyers representing Nirvana dubbed the ruling a “final conclusion”, ending a saga that began when Elden filed his first lawsuit last August and amended it that November, continued when that filing was dismissed in January (as predicted), and reignited when Elden filed another case just a week after the first was thrown out. N

Nevertheless, Elden is appealing the court’s latest ruling – having made a new filing with California’s Ninth Circuit Court of Appeals – and continues to seek monetary damages for “extreme ongoing psychic or emotional injury”.

As reported by Spin, Elden and his attorneys are claiming that the last judge ruled erroneously on the basis that his suit was bound to a statute of limitations. It’s reportedly argued that this can’t be the case because Elden is still suffering from the harm invoked by the ‘Nevermind’ photoshoot, citing Masha’s Law – a 2006 act that permits victims of child pornography to seek restitution into their adult years. 

In a statement published by Spin, Elden’s attorneys wrote: “Courts have repeatedly held that distribution of child pornography infringes a victim’s dignity interests no matter the victim’s age at the time of distribution.” 

The unnamed attorneys also claimed that Cobain had written “several journal entries” that “described his twisted vision for the Nevermind album cover as a manifestation of his emotional and sexual disturbances”. They argued: “Cobain’s preoccupation with pornographic imagery started at a very early age. One of Cobain’s school classmates discovered him drawing pornography as a young child.”

According to the appeal filing (per Spin), Elden is “aware that [Nirvana and co.] are commercially exploiting the frontal nude image of him as a four-month-old child to sell a[n] album to millions of people (many of whom he does not know) around the world”. 

The filing continues: “This understandably causes him extreme ongoing psychic or emotional injury for which he is entitled to damages and an injunction. Although this remedy will not rid the world of his sexualized image, it will provide him the means to get mental health treatment and give him the benefit of knowing that the distribution and repeated violation of his privacy by [Nirvana and co.] will finally stop.”

Nirvana’s lawyers have remained staunch on their stance that Elden “has been fully aware of the facts”, with Grohl himself noting that Elden has a tattoo based on the ‘Nevermind’ artwork. In addition to damages sought, Elden’s demands include Nirvana redacting the original ‘Nevermind’ cover for any potential re-releases. He looked to have it censored for the album’s 30th anniversary edition, but he was unsuccessful in this endeavour.

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