The man who was pictured as a baby on the cover of Nirvana’s Nevermind album has revived his lawsuit against the band after his initial complaint was dismissed by a judge.
Spencer Elden, who claims the photo constitutes child pornography, filed papers on Wednesday, meeting a deadline set by the judge to reinstate his case.
He says the photo, in which he is pictured nude in a swimming pool, had caused “permanent emotional distress”.
Nirvana’s lawyers have yet to respond.
Elden, who is now 30, previously had his case thrown out after failing to respond to a motion to dismiss, filed by Nirvana and their co-defendants last month.
The amended complaint drops a claim that the creation of the photograph entailed the sex trafficking of Elden when he was a baby.
That had been challenged by Nirvana’s lawyers, who said that, “setting aside that this premise is absurd”, the photo was taken before US law allowed victims to sue under the federal sex trafficking of children statute.
However, Elden has restated his previous allegations that Nirvana “intentionally” marketed an image that constitutes “child pornography” to promote the 1991 album “while earning, at a minimum, tens of millions of dollars”.
His lawyers have also included an statement from Robert Fisher, an art director for the Nevermind cover who was named on the original lawsuit, but dropped as a defendant on 22 December.
His statement includes an early mock-up of the artwork, using a stock image of a different swimming baby, whose genitalia are not exposed.
Fisher also points out that he advised the band and their record label that Elden’s genitalia could be digitally removed from the photograph that ended up being used.
Elden’s complaint suggests the band made a deliberate decision to use the more explicit image.
‘Permanent emotional distress’
“Like creators of other controversial album covers, the defendants sought to garner attention by using a sexually explicit image that intentionally focused on Spencer’s carefully positioned enlarged genitals,” his lawyers claimed.
Furthermore, they allege that “the image of Spencer with his naked genitals displayed while grabbing at money resembles the actions of a sex worker”.
As a result, they say he “has suffered and will continue to suffer lifelong damages” including “extreme and permanent emotional distress” as well as “interference with his normal development and educational progress” and “medical and psychological treatment”.
He is asking for damages of at least $150,000 (£109,000) from each of the defendants, who include surviving band members Dave Grohl and Krist Novoselic; the managers of late frontman Kurt Cobain’s estate; Cobain’s former wife Courtney Love; record labels Geffen and Universal Music; and photographer Kirk Weddle.
In their motion to dismiss last month, the defendants said Elden’s arguments lacked merit.
“Elden’s claim that the photograph on the Nevermind album cover is ‘child pornography’ is, on its face, not serious,” their lawyers said, noting that anyone who owned a copy of the record would “on Elden’s theory [be] guilty of felony possession of child pornography”.
They added that, until recently, Elden had seemed to enjoy the notoriety of being the “Nirvana baby”.
“He has re-enacted the photograph in exchange for a fee, many times; he has had the album title… 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,” they said.
The defendants have until 27 January to reply to Elden’s new complaint.
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