The man who appeared naked on cover of Nirvana’s 1991 album Nevermind as a baby is set to appeal a judge’s dismissal of his child pornography case.
Thirty-one-year-old Spencer Elden was just four months old when he was photographed underwater at the Pasadena Aquatic Center in California for the iconic shot.
A fishhook and dollar bills were later added into the image before it appeared on the cover.
However, Elden is not happy with the cover and last August he filed a suit against singer Kurt Cobain's estate and former bandmates, along with photographer Kirk Weddle, Universal Music, Geffen Records, Warner Records and MCA Music seeking at least $150,000 and legal costs.
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Elden claims those named ‘leveraged the lascivious nature of his image’ to make millions of dollars. He says the album, which has sold more than 30 million copies, has caused him ‘lifelong damage’, as well as ‘interference with his normal development and educational progress’ and ‘lifelong loss of income earning capacity’.
Last week, Judge Fernando Olguin of the Central District Court in California threw Elden’s case out, saying he had waited too long to file the suit.
The judge referenced Marsha’s law that requires victims of child abuse images to either bring their claim 10 years after they discover it, or 10 years after they turn 18.
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Judge Olguin said: "Here, plaintiff does not dispute that he knew of injuries arising from defendants' activities related to their use of his image on the Nevermind album cover more than ten years before he filed this action.”
Elden’s lawyers say he will appeal the decision, saying the judge misinterpreted Masha's law.
Attorney Margaret Mabie told NPR: “Most child pornography is traded well into the victim’s adulthood.
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“Masha’s law permits victims to sue for each violation of their privacy when their childhood images remain in circulation.
“Under this logic, any child pornography producer - such as Masha Allen’s original abuser - could simply wait out the clock and then re-distribute abusive material with impunity. Spencer’s victimisation as a child remains frozen in time.”
Lawyers acting on behalf of those named in the suit have claimed Elden has embraced being part of the album - noting that he has the word ‘Nevermind’ tattooed on his chest and that in 2016 he recreated the shot for the album’s 25th anniversary.
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Claire Reid