Spencer Elden, who appeared unclothed on the cover artwork for Nirvana’s 1991 album Nevermind when he was a baby, has sought to appeal his lawsuit against the band, which also involves includes Kurt Cobain’s former wife Courtney Love, Universal Music Group, and photographer Kirk Weddle.
Weddle, who featured on the cover when he was four months old, first opened the lawsuit last year, seeking damages for alleged child pornography and sexual exploitation. According to Elden, the artwork was created using “unlawful conduct” which has since caused him “permanent harm”.
While the case was dismissed by a U.S. District Court Judge for the third and final time in September on the basis of the statute of limitations having run out, Elden has now filed to appeal the dismissal.
As Spin reports, in a new filing with California’s Ninth Circuit Court of Appeals, Elden’s lawyers are arguing that the judge who ruled the dismissal did so on incorrect grounds, suggesting that the statute of limitations does not apply due to the fact that the man is still being negatively affected by the photo and suffering from “‘extreme ongoing psychic or emotional injury’. His team also cited Masha’s Law, which permits child pornography victims to seek monetary damages into adulthood.
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.” They also added how the artwork was planned out in “several journal entries” by Cobain, who “described his twisted vision for the Nevermind album cover as a manifestation of his emotional and sexual disturbances”.
They continued: “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.”
Elden’s decision to sue the band has been met with much criticism and confusion due to the fact his view of the artwork seems to have changed in recent years. In 2016, he recreated the album cover for its 25th anniversary.
Former Nirvana drummer Dave Grohl briefly commented on the lawsuit, noting “Listen, he’s got a Nevermind tattoo. I don’t”.
In spite of Elden’s seemingly positive previous opinions, his lawyers argue that he “is aware that Appellees 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.
“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 Appellees will finally stop.”