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  • Writer's pictureDavid Baker

Never mind. The Nevermind lawsuit is over.

Rock group Nirvana wins lawsuit alleging child porn on the cover of its popular Nevermind album.

As we have previously discussed, Spencer Elden, the man who appeared on the band's iconic 1991 Nevermind album cover as a naked baby in a swimming pool, sued the band for monetary damages based on a number of allegations, including one involving child pornography. However, a federal court judge has now dismissed the lawsuit because it was filed beyond the 10-year statute of limitations.

On September 2, California U.S. District Judge Fernando M. Olguin dismissed Elden's case with prejudice, meaning that he cannot refile it as he has now done several times.

"Spencer’s victimization as a child remains frozen in time. His childhood self continues to be invaded and he will be repeatedly victimized as long as the Nevermind cover continues to be distributed," his attorneys had argued. "The ongoing distribution of Spencer’s child pornography on the Nevermind album cover repeatedly violates the baby depicted on the cover even though he is now all grown up."

"The Nevermind cover was created at time when Spencer was a baby and it is impossible for him to age out of this victimization while his image remains in distribution," they added.

Originally, Elden first filed in U.S. District Court in August 2020 and the lawsuit was dismissed on January 4, 2021. Elden reopened and amended the suit on January 12, 2021, including purported new "images and materials which reveal the Nevermind creators' deliberate choices to commercialize and exploit the sexually explicit photo lasciviously depicting Spencer's genitals," Elden's attorneys said in a statement at the time. This case was dismissed by the court.

But Elden then sued former members of the band in August 2021 for child exploitation and pornography, saying the band knowingly distributed a naked photo of him as a baby on the 1991 album cover and profited from it. Elden was just 4 months old when he was photographed for the cover. Now 31, he was seeking $150,000 in damages.

The defendants in the case — which included former band members, as well as Kurt Cobain's estate, photographer Kirk Weddle, Universal Music, Geffen Records, Warner Records and MCA Music — filed a motion to dismiss the case which Elden’s legal team failed to oppose. This resulted in the case being dismissed again.

However, Elden filed a motion for reconsideration, the lawsuit was reinstated, a third motion to dismiss was filed, and Judge Olguin granted it.

Not surprisingly, Elden plans to appeal the dismissal.

Why It Matters. A statute of limitations is a law that sets the maximum amount of time that a plaintiff in a civil lawsuit can file a complaint for monetary damages or other relief with a court. Typically, the time limit begins to run from the date of an alleged offense, but under certain circumstances, such as an offense involving a minor, the law allows the statute to be ‘tolled’ until a later date. It is important to understand that the length of time a statute allows for a victim to bring legal action against a suspected wrong doer can vary from one jurisdiction to another and can depend on the type of claims involved.

Without offering comment on why Elden’s lawyers seemed to have a hard time meeting statutory deadlines even after filing the lawsuits, it is interesting to note that Elden, whose parents were paid $200 for the original photo shoot, has variously claimed that the notoriety actually was beneficial to his own career in the arts. Undoubtedly, the ongoing success of Nevermind and the significant profits it continues to generate proved a stronger incentive to action than the veracity of his earlier comments.

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