Attorneys for the members of Nirvana have asked a judge to dismiss a lawsuit filed in August by the man who was the “naked baby” on the cover of the 1991 “Nevermind” album, on the basis that the legal arguments that the image constitutes child pornography are decades too late as well as too silly.
Elden’s lawyers at Marsh Law issued a response to Variety, writing in part: “In 1991, Nirvana exploited Spencer’s inability to consent as an infant, and today, the band and Universal Music Group (UMG) continue to prioritize profits over our client Spencer Elden’s right to consent, to have privacy, and to feel dignity. Nirvana and UMG’s motion to dismiss focuses on their past conduct and ignores their ongoing distribution, especially with the 30-year ‘Nevermind’ anniversary and profit margins.” (The album was recently reissued in multiple configurations without the genitalia on the cover redacted, as had been one of the requests in Elden’s August lawsuit.)
As part of its response, Marsh Law said in its statement: “What we cannot continue to ignore is that the image of Elden, at four months old, is actively distributed and constitutes the legal definition of child pornography according to the Dost factors. Child pornography is a ‘forever crime’ – any distribution of or profits earned from any sexually explicit image of a child not only creates longstanding liability but it also breeds lifelong trauma. This is common for all of our clients who are victims of actively traded child pornography, regardless of how long ago the image was created.”
Marsh Law went on to say that the statute of limitations cited by Nirvana’s lawyers is irrelevant as long as the image in question continues to be disseminated. In their view, federal law “makes it clear that the statute of limitations restarts claims each time UMG reproduces, distributes, or possesses Spencer’s Nirvana cover image. Similarly, the statute of limitations … claims restart each time any defendant receives any ‘thing of value’ for the image. For the argument on the statute of limitations to hold water, Nirvana and UMG would have had to cease distribution of, and forfeit profits from, the image in August of 2011. They are welcomed to do so today forward.”
In interviews with Variety and other publications this year, Elden’s lawyers have said that victims of child pornography or other kinds of abuse often take decades to come to terms with the fact that they were abused, and that their client is no different in this regard and should not be held to earlier statements in which he expressed positive or ambivalent feelings about the “Nevermind” cover.
“I think when something like this happens, the only person who can understand what it’s like to be in Spencer’s shoes is Spencer,” one of his attorneys, Maggie Mabie, told Variety in August. “That being said, these are not new feelings. He has always felt invaded. Even as a child, Spencer expressed that this was uncomfortable, and he doesn’t like the way that this puts him in a place where he really can’t (protest) that it’s an invasion of his own privacy, because people come to defend the band, as opposed to protect Spencer. … So the reason it comes now, as opposed to times before, is really because, while Spencer’s had this cause of action all the while, it takes a very long time when you are a victim of these kinds of image abuse crimes to really understand how you’ve been damaged. And it takes a quite a long time for a lawsuit like this to develop when you have sophisticated defendants. This juncture in his life has probably come about because he’s become an adult, and he’s understanding the way that this has affected him. When you’re a kid, your brain isn’t developed enough to fully understand your trauma.”