The album was released in 1991, but Spencer Elden is still hoping to take the bait. The man, whose photo at the age of four months adorned the cover of the album Nevermind, Nirvana’s biggest success, initiated legal proceedings in August 2021 against the former members of the rock group.
Spencer Elden’s lawyer believed that the album cover could be considered “commercial child pornography” and that its use would never have been the subject of a formal contract. The plaintiff then demanded 150,000 dollars (around 135,000 euros) from the two living members of Nirvana – Krist Novoselic and Dave Grohl -, from the photographer of the photo Kirk Weddle as well as from Courtney Love, the widow of Kurt Cobain.
Nevermind is considered one of the most significant albums of the early 1990s. With more than 30 million copies sold, the album and its iconic cover with the baby swimming in the pool are among the best known. The photograph has been considered since its release as a critique of capitalism and the cult of money.
“Neither Spencer nor his legal guardians have ever signed any release authorizing the use of Spencer’s images or likeness, much less child pornography,” claims the complaint filed two years ago in California. For his lawyer, the photo immortalized in 1991 by Kirk Weddle is explicitly sexual since the baby appears naked. In January 2022, however, the complaint was dismissed by Fernando M. Olguin, the judge in charge of the case in Los Angeles.
The case was closed because the complainant failed to respond to the arguments in a timely manner. The judge still gave Spencer Elden ten days to reformulate a complaint, which he did. He still demanded $150,000 in damages but this time, against 17 people. Finally, in September 2022, the American justice system declared that the plaintiff had waited too long before coming forward.
The issue was brought before the federal appeals court in San Francisco, which ruled otherwise. The three judges referred to the case annulled the previous decision on Thursday, December 21, finding that “each new publication (…) can constitute new bodily harm” in the context of a complaint for child pornography. The San Francisco Court of Appeal, however, did not rule on the merits, leaving it up to a new trial before a federal court to judge whether this photograph really constitutes “sexual exploitation of a minor” as claimed. defend Spencer Elden’s lawyers.
