The surviving members of 90’s grunge rock group Nirvana Dave Grohl, Krist Novoselic and the estate of Kurt Cobain, have been sued by Spencer Elden, who appeared as a baby on the cover of their iconic 1991 album Nevermind.
According to a TMZ report and the legal documents uploaded by Pitchfork, Elden has sued all Nirvana band members as well as Nevermind album artwork photographer Kirk Weddle and designer Robert Fisher; the labels responsible for the album’s release, including Universal Music and Geffen Records; and Nirvana’s drummer from 1988 to 1990, Chad Channing.
The lawsuit was filed on August 24 claiming that the defendants have “violated” federal child pornography statutes and that Elden sustained “injuries” and “lifelong damages” due to the defendants’ “commercial child sexual exploitation of him from while he was a minor to the present day”. Neither Grohl, Novoselic, or the estate of Cobain has responded publicly to the lawsuit.
The lawsuit alleges that the band “failed to take reasonable steps to protect Spencer and prevent his widespread sexual exploitation and image trafficking. Cobain agreed to redact Spencer’s image with a sticker bearing the text If you’re offended by this, you must be a closet pedophile” which was in fact detailed by the 1993 Nirvana biography Come As You Are: The Story of Nirvana, however, the album was ultimately released without a said sticker.
The lawsuit further claims “Neither Spencer nor his legal guardians ever signed a release authorizing the use of any images of Spencer or of his likeness and certainly not of commercial child pornography depicting him.” It also alleges that Elden never received any compensation following the commercial success of Nevermind.
Elden is seeking actual damages, or liquidated damages amounting to $150,000 per defendant, attorney’s fees, and a trial by jury. Elden now aged 30, was only a few months old when he was photographed for the cover of Nevermind. In a 2016 TIME interview on the 25th anniversary of the album’s release, he revealed that he had had not come fully to terms with appearing on the cover and that he had previously looked into legal action against the label Geffen Records.
“It’s hard not to get upset when you hear how much money was involved, [When] I go to a baseball game and think about it: ‘Man, everybody at this baseball game has probably seen my little baby penis,’ I feel like I got part of my human rights revoked.” Elden also told TIME that he tried reaching out to the band, but was unsuccessful.
According to the Hollywood Reporter, many legal experts say the lawsuit is likely to be dismissed. Bryan Sullivan, an entertainment litigation partner at Early Sullivan, stated that the suit was “ridiculous,” and that even if there wasn’t a written agreement, Elden’s claims are weak. “I think it is highly unlikely that a record company would use a photograph for an album cover without verifying the existence of a release signed by the parents, but, if is there is no release, it does not mean he has a claim for child pornography. As to the right of privacy, you can waive it by your actions or by his parents’ actions in allowing him to be photographed.”
Entertainment lawyer Andrew Brettler agreed that publicity will be a key issue: “What I think really damns their case is the fact that this kid sat for all these interviews and re-created the album art.”
Elden’s lawyer, Mabbie told CNN the cover is an “overly sexualised” image and said that it was “child exploitation in the way that they created it and the way they distribute the image today.” She also states that Elden is expecting another invasion of his privacy as the album approaches its 30th anniversary, which takes place next month.
