Legally Weird

LEGALLY WEIRD By: Lisa J. Hall

Hodges, Doughty & Carson

SMELLS LIKE TEEN SPIRIT, BUT ADULT REGRET, OH, NEVERMIND

From time to time, you may wonder, “whatever happened to Spencer Elden?” After all, the last time you saw him was probably when he was just a naked baby in a pool, being enticed by a dollar bill on a fish hook. Spencer Elden’s parents were paid $200 for allowing his photograph to be taken for the iconic album cover of Nirvana’s Nevermind, which was released in 1991 and has sold more than 30 million copies.

As you might imagine, Elden is not presently instantly recognizable as the Nirvana baby. Rather, he has enjoyed the type of pseudo-fame that would require him to explain to someone that he was the baby on the Nirvana cover (“You know, the one in the pool? With the dollar?”) for anyone to know who he is. Perhaps to help with his attempts at recognition, he has “Nevermind” tattooed on his chest. He has recreated the pose as an adult more than once (2001, 2008 and 2016), telling the New York Post in 2016 that it was “cool but weird to be part of something so important that I don’t even remember.” He suggested that they do the pose naked, but the photographer thought that would be weird, so he wore his swim shorts. (Good call, photographer!) The year before that, he told The Guardian he was glad he was chosen to be the Nevermind cover baby, and also glad that his image was not used “for something like a Backstreet Boys album.” He also said, “Sooner or later, I want to create a print of a real-deal re-enactment shot, completely naked. Why not? I think it would be fun.”

Despite the tattoo and the multiple recreations of the original photograph, in August of 2021, Elden decided that what actually happened to him was “commercial sexual exploitation,” and he sued Nirvana, L.L.C., the members of Nirvana, and several record companies under 18 U.S.C. § 2255(b). Spencer Elden v. Nirvana, L.L.C., et al., U.S.D.C., C.D. Cal, No. CV 21-6836 FMO (AGRx). He alleged that he had been depicted as a “sex worker,” because he was grabbing for a dollar bill while naked. Alas, the statute of limitations for civil lawsuits under this statute is ten years after the victim discovers the claim or reaches the age of 18. Being too old for the second option, Elden had to argue that he should be able to sue within ten years of discovering any alleged “violation” or “injury,” even if he had been aware of countless other alleged violations or injuries all this time.

The issue came before the court when the defendants filed a Motion to Dismiss Second Amended Complaint. The court held that the statute only applies to someone who was a victim of a violation “while a minor.” The court rejected the argument that Elden had only discovered his “injury” within the last ten years, and even Elden had to admit that “he knew of [alleged] 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.” In light of the fact that he knew or should have known well before 2011 (ten years before filing suit) that no less than thirty million images of his photograph had been part of well-known pop culture for at least three decades, the court dismissed the complaint.

Of course, Elden has appealed. After all, his “true identity and legal name are forever tied to the commercial sexual exploitation he experienced as a minor which has been distributed and sold worldwide from the time he was a baby to the present day.” It begs the question if anyone besides his parents would know the name of the baby on the Nirvana album if he had not filed this lawsuit. We all know that even with the lawsuit, “Spencer Elden” is not going to reach household name status. (I personally had to scroll back to the top of this document to remember his first name. I keep wanting to call him Sheldon). May Sheldon’s imminent return to obsolescence bring him comfort in the days to come.

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