Jackson Walker’s Austin-based trial lawyers Josh Romero and Emilio Nicolas successfully represented Kirk Weddle, the photographer behind Nirvana’s iconic Nevermind album cover featuring a swimming baby grabbing for a dollar bill on a fishhook, in a dispute brought by Spencer Elden. Mr. Elden is the now-adult subject featured on the album cover. On September 2, 2022, California-based U.S. District Judge Fernando Olguin granted the defendants’ Rule 12(b)(6) motion to dismiss the lawsuit as time-barred and, in doing so, dismissed the entire lawsuit with prejudice.
The plaintiff filed suit against Mr. Weddle, the band’s classic lineup, and others in August 2021 in the U.S. District Court for the Central District of California, nearly 30 years after the seminal album’s release, alleging that the album cover’s image violates 18 U.S.C. § 2255, which allows victims of child pornography to recover the actual damages they sustain. The defendants contended that the image was protected speech and not child pornography; that the plaintiff’s parents in 1991 agreed to allow a friend from art school—renowned professional photographer Kirk Weddle—to photograph the infant in a public swimming pool for the album’s cover in exchange for compensation; and that the plaintiff waited too long to assert his claims.
In the motion to dismiss, the defendants argued that the plaintiff’s § 2255 claim is barred by the 10-year statute of limitations, since the plaintiff:
- failed to file the action before turning 28;
- reasonably knew of all alleged criminal violations that occurred while he was a minor before August 2011; and
- reasonably knew about his alleged injury before August 2011.
In January 2022, the Court dismissed the plaintiff’s first amended complaint with leave to amend, and the second amended complaint was filed that same month. Following this most recent dismissal of the lawsuit with prejudice, the plaintiff is appealing the decision to the United States Court of Appeals for the Ninth Circuit.
The case is Spencer Elden v. Nirvana L.L.C., et al., No. CV 21-6836 FMO (ARGx) (C.D. Cal.). For more information about this lawsuit, view the following media articles:
- The Texas Lawbook: “Litigation Roundup: V&E Gets Newspaper’s Defamation Suit Tossed, Jackson Walker Secures Dismissal of Child Pornography Suit Against Nevermind Photog, Cigna Sued for $3M COVID Testing Clawback Attempt“
- Fox 7 Austin: “Lawsuit against Austin photographer of Nirvana’s ‘Nevermind’ album dismissed“
- Austin Business Journal: “Austin lawyers with Jackson Walker win Nirvana ‘Nevermind’ album cover lawsuit“
- Austin American-Statesman: “Judge dismisses lawsuit over Nirvana’s ‘Nevermind’ cover“
- Law360: “‘Nirvana Baby,’ All Grown Up, Waited Too Long To Sue“
- Rolling Stone: “Nirvana Wins ‘Nevermind’ Baby Lawsuit as Judge Dismisses Case for Final Time”
- Reuters: “Nirvana wins dismissal of ‘Nevermind’ naked baby’s lawsuit”
- NPR: “A lawsuit over Nirvana’s ‘Nevermind’ naked baby album cover is dismissed”
- Law360: “Nirvana Hit With Modified Child Porn Suit Over Album Cover”
- Austin Monthly: “The Story Behind The Most Iconic Album Cover Of All Time”
Meet Our Team
|Joshua A. Romero is a trial lawyer who has represented both plaintiffs and defendants in state and federal courts across the country in complex commercial litigation and First Amendment litigation. Josh has successfully tried cases ranging from multimillion-dollar corporate disputes and consumer fraud cases to construction cases. In 2015, he assisted his clients in obtaining the largest settlement in Texas and the fourth largest settlement in the United States, as featured in the National Law Journal. He is nationally ranked by Chambers USA: America’s Leading Lawyers for Business and named among The Best Lawyers in America for Appellate Law, one of Austin’s Top Attorneys for Commercial Litigation, and a Texas Super Lawyer.
Emilio B. Nicolas is a copyright, trademark, and media rights attorney. His practice involves litigation and transactional work, including IP and media rights protection, enforcement, and licensing for companies in the entertainment, media, and technology industries. He is recognized for his successes having been named among The Best Lawyers in America for Copyright Law (2021-2023), one of Austin’s Top Attorneys for Intellectual Property Rights (2021), and a Texas Rising Star for Entertainment & Sports Law (2012-2016).
Founded in 1887, Jackson Walker continues to advance the world of business by helping companies of all sizes navigate today’s increasingly complex, interconnected legal landscape. With about 30% of the firm’s more than 450 attorneys practicing litigation, JW has one of the largest trial practices in the Southwest. Our entertainment litigators take an aggressive but strategic approach toward helping clients across the entertainment industry to solve their business challenges, protect their creative works, and defend their legal rights. To explore our experience, visit the Entertainment, Digital, & Sports subpractice page.