A Los Angeles man pictured as a naked baby in a Pasadena swimming pool 30 years ago on the cover of the multimillion-selling Nirvana album “Nevermind” has refiled his lawsuit against the grunge-rock trio under a federal statute which allows victims of child pornography to recover damages for violations of child porn laws, according to documents obtained Thursday.
Spencer Elden, 30, alleges that the now-defunct group, various record companies and art directors caused him to suffer “lifelong damages” by “trafficking” his image worldwide.
The suit was dismissed Jan. 3 after a judge found he had missed a deadline, but was given a chance to amend his complaint and refile within 10 days. The suit was lodged with Los Angeles federal court on Wednesday.
According to the lawsuit, defendants “knowingly produced, possessed and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so. … Despite this knowledge, defendants failed to take reasonable steps to protect Spencer and prevent his widespread sexual exploitation and image trafficking.”
Elden’s parents never signed a release authorizing the use of the photos taken of the 4-month-old baby in a Pasadena aquatic center in 1990 and Elden received no compensation, the suit alleges.
But defendants including Courtney Love, executor for the estate of late Nirvana leader Kurt Cobain argued in their court papers that Elden seemed to enjoy being the “Nirvana baby” and even has a “Nevermind” tattoo.
“He has re-enacted the photograph in exchange for a fee, many times; he has had the album title… tattooed across his chest; he has appeared on a talk show wearing a self-parodying, nude-colored onesie; he has autographed copies of the album cover for sale on eBay; and he has used the connection to try to pick up women,” according to a defense motion to dismiss.
Elden is seeking a jury trial and $150,000 from each of the 17 defendants or unspecified damages to be determined.
The cover of “Nevermind” — released in 1991 by the Geffen/UMG label — depicts a naked baby swimming underwater, seemingly toward a fish hook with a dollar bill attached. It is among the best-known album covers in rock.
“To ensure the album cover would trigger a visceral sexual response from the viewer, (photographer Kirk) Weddle activated Spencer’s `gag reflex’ before throwing him underwater in poses highlighting and emphasizing Spencer’s exposed genitals,” Elden’s suit alleges.
The lawsuit contends that the cover image chosen by Cobain suggests a “sex worker grabbing for a dollar bill.”
Elden alleges that the defendants “used child pornography depicting Spencer as an essential element of a record promotion scheme commonly utilized in the music industry to get attention, wherein album covers posed children in a sexually provocative manner to gain notoriety, drive sales, and garner media attention, and critical reviews.”
As a result, Elden “has suffered and will continue to suffer lifelong damages,” according to his complaint.
Geffen Records originally shipped 46,521 copies of “Nevermind” to retailers in hopes of eventually selling 200,000 copies. The album, a cornerstone of the grunge era, eventually sold over 30 million copies.