‘This Case Must End’: Nirvana Asks Judge to Toss ‘Nevermind’ Baby’s Child Porn Suit

Nirvana is asking a federal judge to reject – this time once and for all – a child pornography lawsuit filed by the man who appeared as a nude baby in on the cover of the band’s album Nevermind.

Spencer Elden, now 30, recently refiled his accusations in court after they were briefly dismissed due to procedural errors, making largely the same claims: that the iconic album art violated federal child pornography laws by displaying a sexualized image of a minor.

But in a motion to dismiss the case filed Friday, Nirvana argued that the refiled case was still fatally flawed for the same reason as the original – namely, that it was filed years past the deadline to bring such claims in court.

“The [refiled case] is Spencer Elden’s third attempt to contrive a claim for money by pretending that the 30-year old photograph on the cover of Nirvana’s album ‘Nevermind’ — one of the most famous and widely-possessed photographs in history — is ‘child pornography,” the band wrote. “For Elden, this is strike three. This case must end.”

Federal child pornography law has a 10-year statute of limitations that starts when a victim “reasonably discovers” the problem. Nirvana has previously argued that Elden has known about the photo for far longer than a decade – and that he often embraced the image by re-creating it and celebrating his role in its creation.

Elden’s attorneys believe the time limit does not apply, since Nirvana has continued to profit from the allegedly-offending image. But in the new motion on Friday, the band said that argument would only apply to some kind of new “victimization,” not to simply reprinting an iconic album cover.

“Elden’s decision to not sue these Defendants for the past 30 years, despite his decades-long knowledge of their same and unvaried conduct, is dispositive of his claim,” the band wrote. “It is as simple as that.”

Originally released Sept. 24, 1991, Nevermind reached the top spot on the Billboard 200 in January 1992 and ultimately spent 554 weeks on the chart. The album has sold more than 30 million copies and is widely considered one of the most influential in the history of popular music.

The album’s cover — a nude infant swimming in a pool chasing after a dollar attached to a fishhook — has long been interpreted as an edgy critique of greed and capitalism. But in a lawsuit filed in August, Elden claimed it was something else entirely: the kind of “lascivious” display of a minor’s genitals that’s prohibited under federal child pornography statutes.

“Spencer’s true identity and legal name are forever tied to the commercial sexual exploitation he experienced as a minor which has been distributed and sold worldwide from the time he was a baby to the present day,” he wrote at the time.

In addition to Nirvana’s corporate entity, the lawsuit also named Kurt Cobain’s estate, Universal Music Group, Dave Grohl, and a number of other companies and individuals.

Though it has relied on the statute of limitations as a fast way to defeat the lawsuit, the band’s attorneys have repeatedly stressed that they also believe the photo does not meet the definition of child pornography.

“Elden’s claim that the photograph on the Nevermind album cover is ‘child pornography’ is, on its face, not serious,” the band wrote in a previous filing. “A brief examination of the photograph, or Elden’s own conduct (not to mention the photograph’s presence in the homes of millions of Americans who, on Elden’s theory, are guilty of felony possession of child pornography) makes that clear.”