Attorneys for “Nirvana Baby” Spencer Elden say they plan to appeal a recent ruling finding that Elden had filed his lawsuit too late.
The so-called “Nirvana baby” is appealing his lawsuit against the band, after a federal judge ruled in favor of the music group.
According to CBS News, Spencer Elden had filed his lawsuit against Nirvana in U.S. District Court for the Central District of California in 2021.
Elden, now 31, was photographed swimming nude as an infant. The picture was later used on the cover of Nirvana’s best-selling album “Nevermind.”
In his initial lawsuit, Elden claimed that the circulation of his nude likeness was tantamount to child pornography. Felts sought damages for emotional distress and lost earning capacity as an adult.
Elden, adds CBS News, had sued former band members Krist Novoselic, Chad Channing, David Grohl, and Robert Fisher for $150,000 each, as well as the estate of the late Kurt Cobain.
Elden claims that the musicians “commercially marketed Spencer’s child pornography and leveraged the shocking nature of his image to promote themselves and their music at his expense.”
However, U.S. District Judge Fernando M. Olguin found on Friday that Elden had waited too long to file his lawsuit, given that he had learned about the album cover more than 10 years ago.
Olguin dismissed the case in January after attorneys for Elden missed a deadline to file a motion to the defendants’ motion to dismiss.
However, Elden’s attorneys had been allowed to file a second, amended complaint concerning “alleged defects” in the defendants’ motion to dismiss.
Nevertheless, Nirvana’s legal team suggested that Elden was attempting a bad-faith cash-grab, having spent years capitalizing on his “fame” as the so-called “Nirvana baby.”
In court documents, the band’s attorneys observed that Elden had repeatedly bragged about being featured on the album cover, and had—in several instances—charged money to recreate the now-famous photograph.
“He has reenacted the photograph in exchange for a fee, many times; he has had the album title ‘Nevermind’ 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,” Nirvana attorneys wrote.
Elden’s lawyers now claim that Olguin’s dismissal was erroneous, insofar as it allegedly relied on a flawed interpretation of a federal law permitting the victims of child pornography to file abuse lawsuits up until their 28th birthdays.
“This unprecedented interpretation of Masha’s Law contravenes over fifteen years of well-settled precedent and the legislature’s intended purpose of the law,” Elden’s attorneys wrote.
The Marsh Law Firm, which is representing Elden, suggested that their client cannot heal from his “abuse” until he is awarded damages.
“Quite simply, under the statute and the caselaw the ongoing distribution of Spencer’s child pornography on the Nevermind album cover repeatedly violates the baby depicted on the cover even though he is now all grown up,” the Marsh Law Firm said in a statement.
“The Nevermind cover was created at time when Spencer was a baby, and it is impossible for him to age out of this victimization while his image remains in distribution,” they added.