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Third lawsuit against Nirvana over ‘Nevermind’ cover thrown out by judge

Spencer Elden, who appeared on the cover as a baby, intends to appeal

By Joe Goggins

Kurt Cobain and Krist Novoselic onstage with Nirvana, 1993
(Photo: YouTube)

A long-running legal battle over the cover art for Nirvana’s Nevermind is at an end after a US District Judge threw out a third attempt to sue the band over it.

Now 31, Spencer Elden was four months old when he was photographed naked underwater for the iconic artwork. Nevermind went on to sell over 30 million copies and become one of the best-selling albums of all time.

In August of 2021, Elden brought an initial lawsuit against the group’s surviving members, Dave Grohl and Krist Novoselic, as well as the estate of late frontman Kurt Cobain, the photographer involved, Kirk Weddle, and a number of record labels. Elden claimed the image constituted child pornography under US federal statutes, and had caused him “lifelong damages”.

After two previous lawsuits had been dismissed for being outside of the ten-year statute of limitations, a third was struck down on Saturday (September 3) by Judge Fernando Olguin in a Los Angeles court. Olguin specifically rejected Elden’s claim that the cover’s continued circulation was causing him ongoing “loss of enjoyment of life” and emotional distress, noting that this line of argument would allow him to continue to sue Nirvana indefinitely.

“In short, because it is undisputed that [Elden] did not file his complaint within ten years after he discovered a violation… the court concludes that his claim is untimely,” said Olguin in his ruling. “Because plaintiff had an opportunity to address the deficiencies in his complaint regarding the statute of limitations, the court is persuaded that it would be futile to afford plaintiff a fourth opportunity to file an amended complaint.”

This would appear to draw the line under the case, although in a statement to the US edition of Rolling Stone, Elden’s lawyer, Margaret Mabie, confirmed his intention to appeal. “This ruling’s interpretation of the statute of limitations… contravenes over fifteen years of well-settled precedent and the legislature’s intended purpose of the law,” she said. “Under this reading of the law, child pornography remedies vaporise once the victim in the contraband image turns 28 years old. Under this logic, any child pornography producer… could simply wait out the clock and then re-distribute abusive material with impunity.”

Mabie concluded, “The Nevermind cover was created at time when Spencer was a baby and it is impossible for him to age out of this victimisation while his image remains in distribution.” Grohl and Novoselic have yet to pass comment, but Nirvana’s lawyer, Bert Deixler, said: “We are pleased that this meritless case has been brought to a speedy final conclusion.”