Nirvana Baby Cover Art Lawsuit Revived by Federal Judges

A lawsuit everyone thought was settled is headed back to court, thanks to an appellate court. Spencer Elden, the naked baby on the cover of Nirvana's 1991 album Nevermind, sued the band in 2021, calling the cover "child pornography" and alleging that its publication has caused him trauma in his adult life. After being dismissed, and then refiled, in 2022, a judge dismissed the case, saying that the 10-year statute of limitations had expired since the album was published over 30 years before. This new ruling indicates that because the album has been perpetually in print, each new printing starts the clock on a new statute of limitations, and therefore the case can go forward, according to a report at TheWrap.

The album cover features a baby in a swimming pool, seemingly chasing a $1 bill dangling from a fishing line. Generally, non-sexualized photos of naked babies are not considered pornographic. In this case, Elden's claim alleges that dangling the $1 bill could imply that the baby is a sex worker.

"Defendants intentionally commercially marketed Spencer's child pornography and leveraged the shocking nature of his image to promote themselves and their music at his expense," claims the lawsuit. "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."

To support that claim, the lawyer cites Scorpion's The Virgin Killer, Blind Faith's Blind Faith, and Van Halen's Balance. Of the three, two (The Virgin Killer and Blind Faith) have unobscured nudity, while Balance has two children whose genitals are obscured by a piece of playground equipment.

The lawsuit alleges that Elden's parents were paid $200 for the photo shoot, but never signed a release allowing the photo to be used for commercial purposes. He further claims that he has attempted to reach out to members of Nirvana in the past to express his concerns, but has never been contacted back.

Elden's relationship to the cover is a complicated one; he has previously expressed reservations about the photo, implying it seemed exploitative to depict use a baby for the imagery. At the same time, he has regularly recreated the photo (always with swimming trunks on) for album anniversaries and other events. He also has a large "Nevermind" tattoo across his chest. And while he may have criticized the photo in the past, the suit appears to be the first time that he has characterized the photo as pornographic in nature, and the first public allegation that his parents did not sign a commercial release.