The man who appears as the naked baby on Nirvana's 1991 album "Nevermind" and who is suing the band on child pornography charges successfully filed an amended complaint for his lawsuit, moving the case forward.
Spencer Elden first filed his case against the band in the United States District Court in the Central District of California in August 2021, but a judge ordered the case to be dismissed unless he filed an amended complaint by Thursday.
In the amended complaint, Elden, 30, is seeking at least $150,000 for damages related to the use of his image, which he argues violates child pornography laws for continuing commercial gain.
The album cover depicts a naked Elden in a pool of water with a dollar bill floating in front of him, dangling from a fish hook. In the complaint, Elden says that Nirvana, which released a 30th anniversary edition of "Nevermind" in September, "continues to feature a lascivious exhibition of Spencer’s genitals on the cover."
"The conduct depicted, particularly the activation of Spencer’s gag reflex and the prominence and positioning of his genitals in the image, suggests sexual coyness or a willingness to engage in sexual activity," the complaint reads. "The image was intended and designed to elicit a sexual response."
The complaint names Nirvana as an LLC; Dave Grohl, who was the band's drummer; bassist Krist Novoselic and Universal Music Group, a major music corporation, as well as Courtney Love, who is in charge of the estate for the late Kurt Cobain, among others.
In a court filing for a motion to dismiss, attorneys for the defendants said the picture is a now-famous photograph that "evokes themes of greed, innocence and the motif of the cherub [a winged angelic baby] in Western art," and argued Elden has used the image for personal gain.
"Elden has spent three decades profiting from his celebrity as the self-anointed 'Nirvana Baby.' 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," attorneys wrote.
"Nevermind" released at a time when Nirvana had not yet achieved wide commercial success and brought the band international fame.
The band was brainstorming a creative album and accompanying art for "Nevermind" when it decided to hire photographer Kirk Weddle, who is also named in the lawsuit. Weddle took a series of photographs of 4-month-old Elden at a pool in California.