Nirvana has officially moved to dismiss the child-pornography and sex-trafficking lawsuit that one Spencer Elden – the 30-year-old man who appeared on the cover of Nevermind as a baby – levied back in August.
To recap the months-long legal showdown, Elden alleged in his original suit – which was filed against the members of Nirvana, the band’s namesake company, Universal Music, and others – that the defendants had “knowingly produced, possessed, and advertised commercial child pornography” with the iconic cover photo of Nevermind, which has sold north of 30 million copies worldwide.
Elden therefore called for “restitution and disgorgement of all profits and unjust enrichment obtained as a result of” the Nirvana defendants’ allegedly “unlawful conduct” regarding the image. Notwithstanding these demands and the associated lawsuit, though, Universal Music last month released a number of Nevermind 30th anniversary editions – complete with the original cover.
Finally, regarding the unique suit’s background, the case took a strange twist in early November, with the arrival of an alleged intervenor defendant. And that same month, Elden submitted an amended complaint that, while largely the same, placed a greater focus on Kurt Cobain’s alleged role in choosing the cover for Nevermind.
Now, as mentioned at the outset, the Nirvana defendants are attempting to dismiss the suit with prejudice, describing as “not serious” the idea that the Nevermind cover constitutes child pornography.
UMG, Nirvana, and others just recently submitted the corresponding motion, which follows an evidently fruitless meeting between their counsel and the plaintiff’s attorneys on Monday, December 13th. The document emphasizes off the bat that both the “alleged violation of the federal child pornography statute” and the “alleged violation of the federal sex trafficking of children statute” are “barred by the applicable statute of limitations.”
“Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby,’” the firmly worded text proceeds. “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.”
After that, the 22-page-long filing elaborates that the child-pornography claim “has a ten-year limitations period and cannot reach an injury that Elden knew about before 2011.” And as “the statute of limitations for Section 2255 is expressly tied to the plaintiff’s knowledge of his or her victimization,” 30-year-old Elden’s action is barred, per the Nirvana defendants.
On the sex-trafficking front, in addition to the aforementioned statute of limitations argument, UMG and the other defendants state that the law in question went into effect in 2003, and it contains “no retroactive application to conduct by a defendant that pre-dates its effective date.”
“As the law precludes Elden from advancing a private cause of action for sex trafficking under a statute that did not exist at the time of the alleged trafficking,” the text states, “he has no ability to pursue this claim—full stop.”
Lastly, following detailed examples (including interviews) that aim to demonstrate Elden’s longtime knowledge of the album cover, the filing for good measure takes aim at potential “violations of the child pornography statute that occurred on or after August 24, 2011, e.g., a mailing of a copy of the ‘Nevermind’ album after 2011” – though Elden “has not yet” made such an argument.
“Elden has alleged no facts, at all, about any barriers outside his control which prevented him from asserting a timely claim, and cannot plausibly allege any such facts to warrant tolling of the statute from 1995 to the time of filing, even if he were given leave to amend,” the defendants reiterate at the motion’s end. “Elden’s failure to timely pursue a sex trafficking claim within the limitations period bars it now, to the extent that it is not already dead on arrival.”
