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General => General Music Discussion => Topic started by: pg1067 on August 27, 2021, 02:31:26 PM
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So as not to clutter up another thread (page 26 of this thread: https://www.dreamtheaterforums.org/boards/index.php?topic=55663.875 )...
For anyone who hasn't heard, the guy who was the baby on the cover of Nevermind has sued the band, record companies, photographer, etc. on various theories. The complaint alleges violation of various federal child pornography laws, "participation in . . . a sex trafficking venture," negligence (by virtue of the possession and distribution of child pornography), distribution of sexually explicit materials in violation of California law, and intrusion into private affairs/invasion of privacy.
Here's an article with a link to the complaint filed in federal court in Los Angeles: https://blabbermouth.net/news/baby-on-nirvanas-nevermind-cover-sues-band-for-child-pornography/
The plaintiff's lawyer's firm's tag line (as shown on the firm's website) is "Helping sex abuse survivors rebuild their lives with dignity and respect." This lawsuit is anything but dignified and respectful.
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This guy had no issues embracing that he was the album cover baby by recreating the cover (with him wearing shorts) during the 25th year anniversary of the album. That will be the key piece in this being thrown out, I feel. Of course, I'm not a lawyer, so my thoughts does not have much merit to discuss. This guy seems like he's fishing for a settlement deal.
https://loudwire.com/nirvana-baby-nevermind-cover-25th-anniversary/
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Yeah, as Anguyen said, I distinctly remember this dude celebrating that he was on that cover with that 25th anniversary photoshoot. Maybe he needs money and suddenly thought this would be a good idea?
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This guy had no issues embracing that he was the album cover baby by recreating the cover (with him wearing shorts) during the 25th year anniversary of the album. That will be the key piece in this being thrown out, I feel. Of course, I'm not a lawyer, so my thoughts does not have much merit to discuss. This guy seems like he's fishing for a settlement deal.
https://loudwire.com/nirvana-baby-nevermind-cover-25th-anniversary/
I saw something that indicated he has recreated the cover on a semi-regular basis throughout his lifetime. This is relevant to his claimed emotional distress, but I don't see the case ever getting to a point where that is considered.
The first obstacle he'll have to overcome will be a motion to dismiss based on, among other things, the statutes of limitations. His first cause of action is based on a federal child pornography statute, and the statute of limitations expires "not later than 10 years after the date on which the victim reaches 18 years of age." 18 U.S.C. section 2255(b)(2). The other causes of action have either the same or significantly shorter statutes of limitations.
If I were representing the defendants, I might even take a stab at an argument that the album cover is not "child pornography" or "sex trafficking" (as defined in the statutes) as a matter of law.
Yeah, as Anguyen said, I distinctly remember this dude celebrating that he was on that cover with that 25th anniversary photoshoot. Maybe he needs money and suddenly thought this would be a good idea?
My guess is that he was "recruited" by the law firm that's representing him.
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This guy had no issues embracing that he was the album cover baby by recreating the cover (with him wearing shorts) during the 25th year anniversary of the album. That will be the key piece in this being thrown out, I feel. Of course, I'm not a lawyer, so my thoughts does not have much merit to discuss. This guy seems like he's fishing for a settlement deal.
https://loudwire.com/nirvana-baby-nevermind-cover-25th-anniversary/
I saw something that indicated he has recreated the cover on a semi-regular basis throughout his lifetime. This is relevant to his claimed emotional distress, but I don't see the case ever getting to a point where that is considered.
The first obstacle he'll have to overcome will be a motion to dismiss based on, among other things, the statutes of limitations. His first cause of action is based on a federal child pornography statute, and the statute of limitations expires "not later than 10 years after the date on which the victim reaches 18 years of age." 18 U.S.C. section 2255(b)(2). The other causes of action have either the same or significantly shorter statutes of limitations.
If I were representing the defendants, I might even take a stab at an argument that the album cover is not "child pornography" or "sex trafficking" (as defined in the statutes) as a matter of law.
Yeah, as Anguyen said, I distinctly remember this dude celebrating that he was on that cover with that 25th anniversary photoshoot. Maybe he needs money and suddenly thought this would be a good idea?
My guess is that he was "recruited" by the law firm that's representing him.
It's not a stab in as much as it's a slam dunk. The law has become pretty clearly settled on this matter. It's not kiddy porn and it's not pornographic.
My question isn't about the merits of this case. It's without merit. My question would be if the members of Nirvana could sue him for slander (or maybe libel, I get them mixed up) for alleging that they were child pornographers.
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What a douchebag. Hopefully it's thrown out.
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It's not a stab in as much as it's a slam dunk. The law has become pretty clearly settled on this matter. It's not kiddy porn and it's not pornographic.
I don't have any experience with the subject (thankfully), but I'm not sure it's a slam dunk on a motion to dismiss. If it gets past the pleading stage, they'll try to get summary judgment. The statute of limitations is clear cut and is appropriate at the pleading stage, so I'd guess most judges would much rather go that route than something merits-based (although the district judge to whom this case has been assigned might be willing to do it).
My question isn't about the merits of this case. It's without merit. My question would be if the members of Nirvana could sue him for slander (or maybe libel, I get them mixed up) for alleging that they were child pornographers.
They could sue, but they'd lose. Unfortunately (at least in this case), allegations made in litigation are generally privileged against defamation claims (slander is defamation that is spoken, while libel is written).
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It's not a stab in as much as it's a slam dunk. The law has become pretty clearly settled on this matter. It's not kiddy porn and it's not pornographic.
I don't have any experience with the subject (thankfully), but I'm not sure it's a slam dunk on a motion to dismiss. If it gets past the pleading stage, they'll try to get summary judgment. The statute of limitations is clear cut and is appropriate at the pleading stage, so I'd guess most judges would much rather go that route than something merits-based (although the district judge to whom this case has been assigned might be willing to do it).
My question isn't about the merits of this case. It's without merit. My question would be if the members of Nirvana could sue him for slander (or maybe libel, I get them mixed up) for alleging that they were child pornographers.
They could sue, but they'd lose. Unfortunately (at least in this case), allegations made in litigation are generally privileged against defamation claims (slander is defamation that is spoken, while libel is written).
Fair enough. I have no idea how all of this would work in an actual courtroom. I'm just familiar with many of the landmark obscenity cases, and the courts have been quite clear that insofar as CP is concerned, mere nudity does not cut it. There's simply too much art out there, as well as baby pictures, to not qualify it further. Within our particular milieu, Blind Faith, Led Zeppelin, and the Scorpions are relevant examples (though the Scorpions probably don't want to press the matter :lol).
All that said, if they're pushing the statute of limitations angle, don't they have to sort out which allegations have merit to know which limitations apply? I was of the impression that the only reason he's using the child pornography angle is because that's the only one still within the SoL.
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Funny how a few years ago the same kid/adult embraced being the baby on the cover,
but now that it's politically correct he's got dollar signs in his eyes, because NOW he's "offended" and "scarred for life"
must be part of that #MeThree movement...
(https://static.boredpanda.com/blog/wp-content/uploads/2016/09/nirvana-baby-recreates-nevermind-album-cover-spencer-elden-john-chapple-9.jpg)
(https://i.imgur.com/4NrwPeq.jpeg)
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Wow, he even has the word 'Nevermind' tattooed across his chest :facepalm:
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The Judge : Case Dismissed
This idiot's lawyer : Oh. Never mind... Oh Shit sorry.
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When I saw this headline on Twitter I chuckled. As others have pointed out - he had no problems re-creating the cover multiple times. And even had a modelling career because of it.
This just reeks of " It's the 30th anniversary. Nobody knows who I am anymore - I need 15 more mins. And maybe a sh*t ton of cash. "
If I was Dave Grohl i'd be fuming right now.
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What a complete piece of shit, fuck me!
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Kurt is gonna kill himself when he sees that he needs to pay this guy a shit ton of money. Oh, never mind.
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Lolz this will get laughed out of court.
What I'm hoping is that this guy is broke and thought he'd sue the band to get some cash and maybe some more modelling gigs. But it backfires and he has to pay court fees
and pay Geffen, Dave Grohl, Krist Novoselic a SHIT TON of cash in fees / libel costs.
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Lolz this will get laughed out of court.
What I'm hoping is that this guy is broke and thought he'd sue the band to get some cash and maybe some more modelling gigs. But it backfires and he has to pay court fees
and pay Geffen, Dave Grohl, Krist Novoselic a SHIT TON of cash in fees / libel costs.
This is exactly why the guy is doing this, and how this will end up!
He is a vulture who is dumb enough to believe that this will get him a lot of cash, but this will backfire gloriously..
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(https://i.postimg.cc/GpKzd9F4/FB-IMG-1630263933431.jpg) (https://postimages.org/)
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:rollin^
Back to the album cover. I always thought that album cover was stupid, and Nirvana is a way overrated band. That being said, this court case is stupid too. Stupid is is stupid does...
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All that said, if they're pushing the statute of limitations angle, don't they have to sort out which allegations have merit to know which limitations apply? I was of the impression that the only reason he's using the child pornography angle is because that's the only one still within the SoL.
I quoted the statute above. The statute of limitations expires "not later than 10 years after the date on which the victim reaches 18 years of age." Dude is over 30 now, so he's two-plus years too late.
Lolz this will get laughed out of court.
What I'm hoping is that this guy is broke and thought he'd sue the band to get some cash and maybe some more modelling gigs. But it backfires and he has to pay court fees
and pay Geffen, Dave Grohl, Krist Novoselic a SHIT TON of cash in fees / libel costs.
As I mentioned above, there's no defamation here because of the litigation privilege. And, as I also mentioned above, I strongly suspect this guy was recruited by the law firm handling the case, and the law firm will be fronting all costs. As far as paying the defendants' costs, there is no fee shifting (i.e., the defendants will foot their own lawyers' bills), and they won't incur much in the way of recoverable costs.
Here's another guy who had an idea similar to this: https://www.hollywoodreporter.com/business/business-news/250m-grand-theft-auto-lawsuit-385448/
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Who the fuck wants a babies dick on their album cover anyway? They were morons for using it, and he'll win $$$ because #metoo # cancelculture
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:rollin^
Back to the album cover. I always thought that album cover was stupid, and Nirvana is a way overrated band. That being said, this court case is stupid too. Stupid is is stupid does...
Word.
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Who the fuck wants a babies dick on their album cover anyway? They were morons for using it, and he'll win $$$ because #metoo # cancelculture
Did you forget to use sarcasm font?
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Who the fuck wants a babies dick on their album cover anyway? They were morons for using it, and he'll win $$$ because #metoo # cancelculture
If it was a baby girl on the cover this lawsuit would have happened years ago at the beginning of #metoo but now the boys are getting into it.
And in a few years this "male" will transition or want to be gender-fluid or whatever and "they" will sue again. Sarcasm? I wish.
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What is wrong with you people?
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What is wrong with you people?
No shit. This thread turned really strange all of a sudden.
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As soon as the judge finds out that not only has the cover not bothered this guy, but he has been celebrating it, the case will be thrown out.
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^ and has the album title tattooed on his chest :lolpalm:
Anyway - I always read that the 'appendage' was photoshopped on later so it's not even...'him'.
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Who the fuck wants a babies dick on their album cover anyway? They were morons for using it, and he'll win $$$ because #metoo # cancelculture
If it was a baby girl on the cover this lawsuit would have happened years ago at the beginning of #metoo but now the boys are getting into it.
And in a few years this "male" will transition or want to be gender-fluid or whatever and "they" will sue again. Sarcasm? I wish.
Cut that shit out right now. First and only warning.
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Agreed. Also have a word with your mods.
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Fair enough. I have no idea how all of this would work in an actual courtroom. I'm just familiar with many of the landmark obscenity cases, and the courts have been quite clear that insofar as CP is concerned, mere nudity does not cut it. There's simply too much art out there, as well as baby pictures, to not qualify it further.
Yeah seriously, so many parents take photos of their babies playing in the bath etc. Imagine what kind of insane legal precedent it were to create if the Nevermind cover were suddenly deemed to be pornographic.
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As soon as the judge finds out that not only has the cover not bothered this guy, but he has been celebrating it, the case will be thrown out.
^ and has the album title tattooed on his chest :lolpalm:
If the defense lawyers and judge do their jobs, that evidence will never get in front of the judge.
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Well, it will have to get in front of the judge so he can rule on whether or not it is admissible. I think you mean that they will try to keep it from getting in front of the jury, right?
But I'm not so sure it would be inadmissible in this case. I don't handle these kinds of cases, so I don't know how the case law has developed in terms of whether this type of evidence is deemed more prejudicial than probative in these types of cases. Seems to me it could be probative to proving some elements of the case.
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Well, it will have to get in front of the judge so he can rule on whether or not it is admissible. I think you mean that they will try to keep it from getting in front of the jury, right?
But I'm not so sure it would be inadmissible in this case. I don't handle these kinds of cases, so I don't know how the case law has developed in terms of whether this type of evidence is deemed more prejudicial than probative in these types of cases. Seems to me it could be probative to proving some elements of the case.
I think what PG means that if the defense does their job properly, they don't even need the facts that the guy embraced in a positive way being the Nevermind baby to be a factor in getting this thrown out.
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Well, it will have to get in front of the judge so he can rule on whether or not it is admissible. I think you mean that they will try to keep it from getting in front of the jury, right?
I know where you're going, and it makes sense, but my point was a bit different.
I think this case should get tossed on Rule 12(b)(6) motion to dismiss based on the applicable statutes of limitations. If that happens, then NO evidence will ever get in front of the judge and there never will be a trial.
If that doesn't happen, then I absolutely think evidence of the guy's tattoo and his recreations of the cover are admissible because they're relevant to his claim for emotional distress damages.
We should see the defendants' response by mid-September, and I'll be interested to read it.
In the meantime, here's an article -- https://nypost.com/2021/08/25/legal-experts-trash-child-porn-claim-over-nirvana-album-cover/ -- in which a lawyer "who’s represented thousands of survivors of childhood sexual abuse, called the case . . . 'just outrageous on so many levels.'
“'I’ve never seen a more offensive, frivolous lawsuit in the history of my career.' . . .
“'Not only do I not think this lawsuit will hold water, I think the attorneys will be scrutinized for even filing this thing,' he said.
"[He] also called the suit 'really offensive to the true victims' of child pornography, saying that 'the people that traffic in this garbage do it for sexual gratification.'
“'The idea that the Nirvana album is for the purpose of gratification sexually is just such a ridiculous outrage,” he said.
“'This is a money grab and … I would look for a court to dismiss because it’s frivolous.'"
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:tup
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“'I’ve never seen a more offensive, frivolous lawsuit in the history of my career.' . . .
“'Not only do I not think this lawsuit will hold water, I think the attorneys will be scrutinized for even filing this thing,' he said.
"[He] also called the suit 'really offensive to the true victims' of child pornography, saying that 'the people that traffic in this garbage do it for sexual gratification.'
“'The idea that the Nirvana album is for the purpose of gratification sexually is just such a ridiculous outrage,” he said.
“'This is a money grab and … I would look for a court to dismiss because it’s frivolous.'"
All of this. This has nothing to do with #MeToo or cancel culture or gender-fluidity(??? ??? ???) - dude's just desperate for money and his hypocrisy couldn't be any more evident.
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Amazing to me how what the album cover was meant to show (in an artistic form) became reality :lol
Also, shouldn't think guy be suing his parents or something for allowing their baby to be naked on the album cover? I don't know the laws or anything but obviously at that age he can't consent to anything and I'm assuming his parents did though.
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I obviously know squat about how court cases work. But I’m assuming withholding evidence is
Tantamount to perjury ? In some way ?
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Also, shouldn't think guy be suing his parents or something for allowing their baby to be naked on the album cover? I don't know the laws or anything but obviously at that age he can't consent to anything and I'm assuming his parents did though.
He COULD sue his parents (anyone CAN SUE anyone for anything), and I guess the theory would be that they facilitated the alleged pornography.
I obviously know squat about how court cases work. But I’m assuming withholding evidence is
Tantamount to perjury ? In some way ?
Not sure what you're getting at here. In civil litigation in the U.S., parties to a lawsuit engage in a process called discovery. Parties can ask each other questions (interrogatories), to make admissions and denials, and to produce documents. Those things require responses under oath. In federal court (which is where this case is pending), parties also have certain obligations to disclose information that may include evidence. Failure to comply with disclosure and discovery obligations can have various penalties (not quite like perjury, which is a crime). However, if evidence is not requested through discovery and not within the scope of mandatory disclosures, then it need not be disclosed.
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Amazing to me how what the album cover was meant to show (in an artistic form) became reality :lol
Also, shouldn't think guy be suing his parents or something for allowing their baby to be naked on the album cover? I don't know the laws or anything but obviously at that age he can't consent to anything and I'm assuming his parents did though.
Don't these things just get a one-time modeling fee and sign a release or something? Unless there was a contract that had something entitling them to a cut there's nothing to go on.
The only thing this guy has to sue for is "child porn" and then, yeah, maybe he should sue his parents since nobody had a problem with it when it came out and nobody has a problem with it now.
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Also, shouldn't think guy be suing his parents or something for allowing their baby to be naked on the album cover? I don't know the laws or anything but obviously at that age he can't consent to anything and I'm assuming his parents did though.
He COULD sue his parents (anyone CAN SUE anyone for anything), and I guess the theory would be that they facilitated the alleged pornography.
I obviously know squat about how court cases work. But I’m assuming withholding evidence is
Tantamount to perjury ? In some way ?
Not sure what you're getting at here. In civil litigation in the U.S., parties to a lawsuit engage in a process called discovery. Parties can ask each other questions (interrogatories), to make admissions and denials, and to produce documents. Those things require responses under oath. In federal court (which is where this case is pending), parties also have certain obligations to disclose information that may include evidence. Failure to comply with disclosure and discovery obligations can have various penalties (not quite like perjury, which is a crime). However, if evidence is not requested through discovery and not within the scope of mandatory disclosures, then it need not be disclosed.
So if neither side requests or admits to see all the times he's re-created the cover / had the album cover literally tattooed on himself - then it wouldn't be considered
with-holding evidence ? That's basically what I was wondering. And if it wasn't 'requested' in the discovery stage then the lawyer for the defence can't suddenly bring it up
mid trial ?
It's hard to imagine that the defence lawyers wouldn't bring it up though.
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So if neither side requests or admits to see all the times he's re-created the cover / had the album cover literally tattooed on himself - then it wouldn't be considered
I don't want to get too deep into the civil procedure because think most folks will find it boring, but let's see if I can address this question succinctly.
In the U.S., when one party sues another, the plaintiff files a document called a complaint (in some places it's called a petition). That complaint typically a bunch of factual allegations ("Plaintiff is the baby who appeared on the cover of Nevermind"), coupled with conclusory allegations along the lines of, "therefore, the defendants possessed and distributed child pornography in violation of the law and I'm entitled to damages").
The most common way for a defendant to respond to a complaint is to file a document called an answer or response. In the answer, the defendant will admit or deny the allegations in the complaint and, usually, conclude with, "therefore, the plaintiff isn't entitled to anything." If the defendant files an answer, the case then proceeds to the discovery phase, which I described previously.
Less commonly -- but what I think will happen here -- is that the defendant will file a motion to dismiss -- in this case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A motion to dismiss of this type will argue that, even if all of the facts alleged in the complaint are true, the plaintiff is nevertheless entitled to no relief. In this case, I believe the defendants' motion to dismiss will be premised on the statute of limitations (I assume you know what that is, but if not, it's a law that says a lawsuit has to be filed within a certain amount of time after the occurrence of the acts or omissions on which the lawsuit is based). In considering a 12(b)(6) motion, the court must assume all factual allegations in the complaint are true, and the court may not consider evidence outside of what is alleged in the complaint (there are some exceptions to this, but the only one relevant here is that copies of the cover of Nevermind could be considered because it's alleged in the complaint).
So...at the motion to dismiss stage, there is no presentation of, or withholding, evidence. Evidence doesn't come into play until the discovery stage, and I addressed that previously. Yes, if the case gets that far, and if the defendants never sought to admit evidence of the plaintiff's cover recreations, then those recreations would never come before the court. That wouldn't be withholding evidence because the defendants and their lawyers know as well as you and I that the plaintiff did this, and it's their responsibility to present evidence that harms the plaintiff's case and is favorable to the defendants' case.
It's hard to imagine that the [defense] lawyers wouldn't bring it up though.
It's beyond "hard to believe." They will offer it into evidence if the case goes beyond the motion to dismiss stage.
Don't these things just get a one-time modeling fee and sign a release or something?
Yes, but the plaintiff alleged that his parents never signed any release.
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Thanks ! :tup :tup
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So...this lawsuit has been dismissed.
In late November, the plaintiff filed an amended complaint. I didn't carefully compare the amended complaint to the original, but it appears to have much more detailed factual allegations regarding the creation of the album cover and trying to paint Cobain as a pedophile.
Shortly before Christmas, the defendants filed a motion to dismiss (based on Rule 12(b)(6) of the Federal Rules of Civil Procedure, as discussed in my Sept. 1 post above). The only legal ground for the motion was the statute of limitations (and also that the acts alleged in the complaint occurred prior to the enactment of the law allowing a civil cause of action for "sex trafficking").
In the second paragraph of the intro to the motion, the defendants noted that "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." (the defendants asked the court to take judicial notice of these facts, but it's not uncommon for a defendant to plant a seed in the judge's mind by citing otherwise inadmissible stuff in the intro to a motion to dismiss). They then pointed out that Elden's claim about "child pornography" was absurd on its face and cited cases that talk about Renaissance paintings of nude children obviously not being pornographic. The legal arguments are somewhat technical and unremarkable.
On the same day that the motion was filed, the plaintiff filed a notice of voluntary dismissal (without prejudice to possibly being refiled). Given that the motion to dismiss was filed first, the notice of voluntarily dismissal was technically invalid (if a defendant makes an appearance, a plaintiff cannot unilaterally dismiss a federal court lawsuit). On January 3, the court issued an order granting the motion to dismiss (again, without prejudice). That order did not mention the voluntary dismissal and said the plaintiff has until January 13 to file a second amended complaint, if he still wishes to pursue the case.
So...stupid lawsuit dies quietly.
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Not surprising at all. What is surprising is that Elden bothered trying to sue in the first place. But he obviously was in it for getting a cash grab. I can't remember exactly what he said, but I recall reading him saying something to the effect that everybody else was making huge profits off of the album, which implies that he wants a piece of the pie too, and he foolishly thought that this was going to be the way he was going to get it. Now he comes off looking like a real greedy idiot in addition to being more easily identified as the "Nirvana baby" than he ever did before. ::)
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Not surprising at all. What is surprising is that Elden bothered trying to sue in the first place. But he obviously was in it for getting a cash grab. I can't remember exactly what he said, but I recall reading him saying something to the effect that everybody else was making huge profits off of the album, which implies that he wants a piece of the pie too, and he foolishly thought that this was going to be the way he was going to get it. Now he comes off looking like a real greedy idiot in addition to being more easily identified as the "Nirvana baby" than he ever did before. ::)
And likely lost a lot of money paying lawyers for this.
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Not surprising at all. What is surprising is that Elden bothered trying to sue in the first place. But he obviously was in it for getting a cash grab. I can't remember exactly what he said, but I recall reading him saying something to the effect that everybody else was making huge profits off of the album, which implies that he wants a piece of the pie too, and he foolishly thought that this was going to be the way he was going to get it. Now he comes off looking like a real greedy idiot in addition to being more easily identified as the "Nirvana baby" than he ever did before. ::)
And likely lost a lot of money paying lawyers for this.
I kind of assumed that it was lawyers who roped him into this, hoping to get a chunk of his settlements.
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No clue. But if it was, I’m sure those lawyers still want to get paid for their time.
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No clue. But if it was, I’m sure those lawyers still want to get paid for their time.
The lawyers will have to chime in, but I figured they only got paid if they earned some settlement dough. I don't know how it works, but I just assumed their time was essentially a lottery ticket. Also. . .
(https://external-content.duckduckgo.com/iu/?u=http%3A%2F%2Fblog.rocketlawyer.com%2Fwp-content%2Fuploads%2F2012%2F09%2Flionel-hutz-advertisment.png&f=1&nofb=1)
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Not surprising at all. What is surprising is that Elden bothered trying to sue in the first place. But he obviously was in it for getting a cash grab. I can't remember exactly what he said, but I recall reading him saying something to the effect that everybody else was making huge profits off of the album, which implies that he wants a piece of the pie too, and he foolishly thought that this was going to be the way he was going to get it. Now he comes off looking like a real greedy idiot in addition to being more easily identified as the "Nirvana baby" than he ever did before. ::)
From the motion to dismiss: "In 2016, a twenty-five-year-old Elden told the New York Post about the many instances in which he voluntarily re-created the same photograph (for a fee), including his proposal to 'do it naked' in the most recent re-enactment in 2016. That same year, Elden confessed to Time magazine that he had been harboring some resentment over the fact that everyone else 'involved in the album has tons and tons of money,' while he was a grown man 'living in my mom’s house and driving a Honda Civic.' Elden admitted his frustration 'about never receiving any sort of compensation for Nevermind' had led him to look 'into pursuing legal action,' but those efforts had been unsuccessful. 'It’s hard not to get upset when you hear how much money was involved,' he said at the time." (citations omitted, but they include 9/23/16 NY Post and Time Magazine articles).
The Time article also includes this statement: "Even though Elden has recreated the photo shoot a number of times and has a large tattoo that says 'Nevermind' on his chest, he says he hasn't fully come to terms with being on the album's cover. 'I got a little upset for a bit,' he says. 'I was trying to reach out to these people. I never met anybody. I didn't get a call or email. I just woke up already being a part of this huge project. It's pretty difficult-you feel like you're famous for nothing, but you didn't really do anything but their album.' [P] Frustrated about never receiving any sort of compensation for Nevermind, Elden recently looked into pursuing legal action against Geffen Records, but was unsuccessful. . . . [P] '[When] I go to a baseball game and think about it: "Man, everybody at this baseball game has probably seen my little baby penis," I feel like I got part of my human rights revoked,' says Elden."
And likely lost a lot of money paying lawyers for this.
I kind of assumed that it was lawyers who roped him into this, hoping to get a chunk of his settlements.
No clue. But if it was, I’m sure those lawyers still want to get paid for their time.
Well...every lawyer WANTS to be paid for his/her time, but that's how working on contingency works. Sometimes contingency fee lawyers require their clients to pay hard costs up front, but the lawyer doesn't get paid for his/her time if the client doesn't receive anything from the defendant.
Elden's lawyer is a guy who specializes in (according to his firm's website) "helping sex abuse survivors rebuild their lives with dignity and respect." In fact, the website indicates it's the firm's entire practice. Based on Elden's quote about looking into taking legal action and being unsuccessful, I'm guessing that he approached a bunch of entertainment lawyers to pursue some sort of right of publicity claim and got shut down. Maybe this lawyer reached out to him and sold him on pursuing this child porn/sex trafficking theory and he figured he had nothing to lose. I'd be utterly shocked if the lawyer/firm didn't cover all costs (which at this stage would have been nothing but the filing fee and cost of serving the complaint (which wouldn't likely have been more than $1,000)) and represent him on contingency.
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I wonder if the thought has crossed his mind to sue the hospital he was born at because the doctors and nurses saw his little baby penis.
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I wonder if the thought has crossed his mind to sue the hospital he was born at because the doctors and nurses saw his little baby penis.
(https://i.imgur.com/sj3bD5L.jpeg)
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These stories irk me. Despite the narrative we're fed daily on social media, we're NOT all "equal" in the sense that Elden's contribution to the phenomenon that was Nirvana and Nevermind is not the same as everyone else's. It's just not. That could have just as easily been a painting, and we're still where we are. Any money he might have gotten is basically a green, paper participation trophy. We've seen this time and time and time and time again. Jane's Addiction had an alternate cover for both their first two studio albums. Scorpions have at least
four five albums with alternate covers. There are other examples. You can't hear an album cover on the radio. Or on MTV. The level of entitlement, to look at that record (which, by the by, I feel is ENTIRELY overrated to begin with) and imagine that your little baby penis has an equal level of entitlement to the equity that record generated is, to me, hubris of an uncompromising degree.
I can't for the life of me imagine Geffen Records saying "well, the singing is crap, the songs are crap, but we can DO something with this album cover! Let's go with it anyway!".
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These stories irk me. Despite the narrative we're fed daily on social media, we're NOT all "equal" in the sense that Elden's contribution to the phenomenon that was Nirvana and Nevermind is not the same as everyone else's. It's just not. That could have just as easily been a painting, and we're still where we are. Any money he might have gotten is basically a green, paper participation trophy. We've seen this time and time and time and time again. Jane's Addiction had an alternate cover for both their first two studio albums. Scorpions have at least four five albums with alternate covers. There are other examples. You can't hear an album cover on the radio. Or on MTV. The level of entitlement, to look at that record (which, by the by, I feel is ENTIRELY overrated to begin with) and imagine that your little baby penis has an equal level of entitlement to the equity that record generated is, to me, hubris of an uncompromising degree.
I can't for the life of me imagine Geffen Records saying "well, the singing is crap, the songs are crap, but we can DO something with this album cover! Let's go with it anyway!".
While you're 100% correct, I have actually bought albums in the past (back in the record store days) based solely on the cover. Nirvana not being one of them, but before all the online streaming ways, just picking random stuff based on a cool cover was a potential way to discover awesome bands you'd never hear on the radio.
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These stories irk me. Despite the narrative we're fed daily on social media, we're NOT all "equal" in the sense that Elden's contribution to the phenomenon that was Nirvana and Nevermind is not the same as everyone else's. It's just not. That could have just as easily been a painting, and we're still where we are. Any money he might have gotten is basically a green, paper participation trophy. We've seen this time and time and time and time again. Jane's Addiction had an alternate cover for both their first two studio albums. Scorpions have at least four five albums with alternate covers. There are other examples. You can't hear an album cover on the radio. Or on MTV. The level of entitlement, to look at that record (which, by the by, I feel is ENTIRELY overrated to begin with) and imagine that your little baby penis has an equal level of entitlement to the equity that record generated is, to me, hubris of an uncompromising degree.
I can't for the life of me imagine Geffen Records saying "well, the singing is crap, the songs are crap, but we can DO something with this album cover! Let's go with it anyway!".
While you're 100% correct, I have actually bought albums in the past (back in the record store days) based solely on the cover. Nirvana not being one of them, but before all the online streaming ways, just picking random stuff based on a cool cover was a potential way to discover awesome bands you'd never hear on the radio.
Well, me too. I get that. But even with that, he did nothing but float there. He didn't block the cover, he didn't shoot the cover, he didn't develop the cover...
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These stories irk me. Despite the narrative we're fed daily on social media, we're NOT all "equal" in the sense that Elden's contribution to the phenomenon that was Nirvana and Nevermind is not the same as everyone else's. It's just not. That could have just as easily been a painting, and we're still where we are. Any money he might have gotten is basically a green, paper participation trophy. We've seen this time and time and time and time again. Jane's Addiction had an alternate cover for both their first two studio albums. Scorpions have at least four five albums with alternate covers. There are other examples. You can't hear an album cover on the radio. Or on MTV. The level of entitlement, to look at that record (which, by the by, I feel is ENTIRELY overrated to begin with) and imagine that your little baby penis has an equal level of entitlement to the equity that record generated is, to me, hubris of an uncompromising degree.
I can't for the life of me imagine Geffen Records saying "well, the singing is crap, the songs are crap, but we can DO something with this album cover! Let's go with it anyway!".
While you're 100% correct, I have actually bought albums in the past (back in the record store days) based solely on the cover. Nirvana not being one of them, but before all the online streaming ways, just picking random stuff based on a cool cover was a potential way to discover awesome bands you'd never hear on the radio.
Well, me too. I get that. But even with that, he did nothing but float there. He didn't block the cover, he didn't shoot the cover, he didn't develop the cover...
I wonder when the 3-400 women dressed as BDSM subs will sue every 80's band ever for similar reasons.
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I wonder if he had won the lawsuit, would we have seen a chain reaction of similar lawsuits then? You know, other people trying to cash in on this, if it had been a successful one?
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I wonder if he had won the lawsuit, would we have seen a chain reaction of similar lawsuits then? You know, other people trying to cash in on this, if it had been a successful one?
I think that goes without saying. Humans are predictable pond scum.
But what would the movement be called? #peetoo?
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I wonder if the thought has crossed his mind to sue the hospital he was born at because the doctors and nurses saw his little baby penis.
:lol :lol
These stories irk me. Despite the narrative we're fed daily on social media, we're NOT all "equal" in the sense that Elden's contribution to the phenomenon that was Nirvana and Nevermind is not the same as everyone else's. It's just not. That could have just as easily been a painting, and we're still where we are.
Yup. The album would have sold EXACTLY the same number of copies if he hadn't been on the cover.
What bugs me more than this is that the lawyer should have known better. The lawyer has a legitimate niche, and taking a case likes this has the effect of delegitimizing the cases that have real merit.
While you're 100% correct, I have actually bought albums in the past (back in the record store days) based solely on the cover. Nirvana not being one of them, but before all the online streaming ways, just picking random stuff based on a cool cover was a potential way to discover awesome bands you'd never hear on the radio.
Well, me too. I get that. But even with that, he did nothing but float there. He didn't block the cover, he didn't shoot the cover, he didn't develop the cover...
I've also bought albums based on the cover. However, while Elden's public comments from six years ago focused on money and getting a share of the pie, this lawsuit was NOT about that. Even if he had been able to move past the statute of limitations issue (and he may still file an amended complaint), his shift in focus from trying to profit off the thing to some sort of moral crusade would have killed him from a damages standpoint.
I wonder if he had won the lawsuit, would we have seen a chain reaction of similar lawsuits then? You know, other people trying to cash in on this, if it had been a successful one?
Possibly, but it would depend on why he won. There probably aren't a ton of multi-platinum album covers that depict a minor in some state of nudity that would allow for a similar "child pornography" argument. There's Virgin Killer, but that album would have no appreciable value as a target because it didn't even go gold in the U.S. I know Adami was speaking in jest, but all of the '80s BDSM models were (presumably but maybe not) adults.
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What bugs me more than this is that the lawyer should have known better. The lawyer has a legitimate niche, and taking a case likes this has the effect of delegitimizing the cases that have real merit.
I'd kind of disagree with that. I'm familiar with the cases that spawned this particular specialization, I've listened to arguments and read the decisions, and I'm aware of what these guys are going after. The only difference between these guys and the stereotypical ambulance chasers are that these guys have highly sympathetic clients that we can all root for. That doesn't make it any less exploitative, though, or them any less opportunistic.
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These stories irk me. Despite the narrative we're fed daily on social media, we're NOT all "equal" in the sense that Elden's contribution to the phenomenon that was Nirvana and Nevermind is not the same as everyone else's. It's just not. That could have just as easily been a painting, and we're still where we are. Any money he might have gotten is basically a green, paper participation trophy. We've seen this time and time and time and time again. Jane's Addiction had an alternate cover for both their first two studio albums. Scorpions have at least four five albums with alternate covers. There are other examples. You can't hear an album cover on the radio. Or on MTV. The level of entitlement, to look at that record (which, by the by, I feel is ENTIRELY overrated to begin with) and imagine that your little baby penis has an equal level of entitlement to the equity that record generated is, to me, hubris of an uncompromising degree.
I can't for the life of me imagine Geffen Records saying "well, the singing is crap, the songs are crap, but we can DO something with this album cover! Let's go with it anyway!".
While you're 100% correct, I have actually bought albums in the past (back in the record store days) based solely on the cover. Nirvana not being one of them, but before all the online streaming ways, just picking random stuff based on a cool cover was a potential way to discover awesome bands you'd never hear on the radio.
Well, me too. I get that. But even with that, he did nothing but float there. He didn't block the cover, he didn't shoot the cover, he didn't develop the cover...
Agreed all round, Bill. Even to the extent that album covers can help sell albums, that's down to the vision of the artist. But anyway, if covers can make someone buy an album then they can damn well put people off from it too.
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I've been thinking about this a fair amount (it's what I do), and even if it WAS a case of the "cover selling the record", it's STILL not him. I mean, does the naked guy from Hemispheres and Going For The One deserve special compensation? Does the concept of the two sides of the brain (Rush) or the juxtaposition of man and machine (Yes) get elevated because of THAT PARTICULAR set of ass cheeks? I'm thinking no; it's probably a better conversation for the P/R section, but I'm just not on board with this idea that mere presence makes it something special and unique, and creates an entitlement.
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These stories irk me. Despite the narrative we're fed daily on social media, we're NOT all "equal" in the sense that Elden's contribution to the phenomenon that was Nirvana and Nevermind is not the same as everyone else's. It's just not. That could have just as easily been a painting, and we're still where we are. Any money he might have gotten is basically a green, paper participation trophy. We've seen this time and time and time and time again. Jane's Addiction had an alternate cover for both their first two studio albums. Scorpions have at least four five albums with alternate covers. There are other examples. You can't hear an album cover on the radio. Or on MTV. The level of entitlement, to look at that record (which, by the by, I feel is ENTIRELY overrated to begin with) and imagine that your little baby penis has an equal level of entitlement to the equity that record generated is, to me, hubris of an uncompromising degree.
I can't for the life of me imagine Geffen Records saying "well, the singing is crap, the songs are crap, but we can DO something with this album cover! Let's go with it anyway!".
While you're 100% correct, I have actually bought albums in the past (back in the record store days) based solely on the cover. Nirvana not being one of them, but before all the online streaming ways, just picking random stuff based on a cool cover was a potential way to discover awesome bands you'd never hear on the radio.
Well, me too. I get that. But even with that, he did nothing but float there. He didn't block the cover, he didn't shoot the cover, he didn't develop the cover...
Agreed all round, Bill. Even to the extent that album covers can help sell albums, that's down to the vision of the artist. But anyway, if covers can make someone buy an album then they can damn well put people off from it too.
I was going to say basically the same thing. I know I have consciously NOT bought albums because of the album covers.
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As have I; but same concept. If I DIDN'T buy a record because of the cover, I can't recall it ever being because "John Q. Artwerk" was the subject of the cover.
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True.
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https://pitchfork.com/news/nevermind-baby-refiles-lawsuit-against-nirvana/
Time for another shot
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https://pitchfork.com/news/nevermind-baby-refiles-lawsuit-against-nirvana/
Time for another shot
What a dumbass… :facepalm:
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https://pitchfork.com/news/nevermind-baby-refiles-lawsuit-against-nirvana/
Time for another shot
I'm not familiar with Pitchfork, but it's obvious that the editor who came up with the headline doesn't know what he/she is talking about.
The headline is wrong. The lawsuit was not refiled. It's the same lawsuit. The sub-headline is wrong. The lawsuit had NOT "been dismissed after he failed to meet a deadline." The plaintiff attempted to dismiss voluntarily but the court didn't accept the filing and, instead, dismissed it, without prejudice and with leave to file a second amended complaint by January 13, 2022. That's exactly what happened (he actually filed it a day early).
The second amended complaint is little different than the original. It simply adds allegations that the defendants committed acts in violation of the relevant federal statutes "within the last 10 years." This is essentially what he could have argued in opposition to the first amended complaint, which focused on the creation and initial distribution of the album long before the applicable limitations period.
I think the court will ultimately have to make a ruling that, as a matter of law, the album cover is not child pornography.
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So he’s bitter he didn’t get a slice of the Nevermind pie…
Unfortunately, that’s not how it works. He (or rather his parents) signed a model release, they were compensated for the photo shoot and that’s the end of it. Most actors below the top top of the A-list get paid for their time and that’s the extent of it. Even artists like Hipgnosis or Hugh Syme don’t get sales participation (as far as I’m aware). They create the art- get paid their fee and that’s it. No one is arguing the Album art doesnt play a role in the success of an album, often times it does- but that’s just not how the business works.
Hell, even musicians don’t get piece of the pie. Jake E Lee wrote Bark at the Moon and never saw a dime from publishing or the albums sales, directly. Same with Vivian Campbell- he gets a lot of shit but the dude probably makes more money from one arena tour with Def Leppard than he has from the three Dio albums over the last 35 years.
Dude just needs to be happy he plays a small part, view it as a good story to tell at parties, cause that’s as good as it’s gonna get for him.
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So he’s bitter he didn’t get a slice of the Nevermind pie…
Unfortunately, that’s not how it works. He (or rather his parents) signed a model release, they were compensated for the photo shoot and that’s the end of it. Most actors below the top top of the A-list get paid for their time and that’s the extent of it. Even artists like Hipgnosis or Hugh Syme don’t get sales participation (as far as I’m aware). They create the art- get paid their fee and that’s it. No one is arguing the Album art doesnt play a role in the success of an album, often times it does- but that’s just not how the business works.
Hell, even musicians don’t get piece of the pie. Jake E Lee wrote Bark at the Moon and never saw a dime from publishing or the albums sales, directly. Same with Vivian Campbell- he gets a lot of shit but the dude probably makes more money from one arena tour with Def Leppard than he has from the three Dio albums over the last 35 years.
Dude just needs to be happy he plays a small part, view it as a good story to tell at parties, cause that’s as good as it’s gonna get for him.
But your post highlights a really important fact. These are not examples, IMO, of people getting taken advantage of, which is what the lawsuit wants us to believe. It's people making bad decisions, either for themselves or for others. For every naked baby or Jake E. Lee - who WERE compensated, in some form or fashion for their work, let's not kid ourselves - that in hindsight sold themselves short, there is someone that took the points (the percentage of later sales) and found out they were part of a dud and should have taken the lump sum. The creators (for lack of a better word) here aren't responsible for GUARANTEEING a return for these participants. It's not an entitlement.
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So he’s bitter he didn’t get a slice of the Nevermind pie…
Unfortunately, that’s not how it works. He (or rather his parents) signed a model release
He has alleged in all three iterations of the complaint that they did NOT sign a release.
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Pure speculation on my part, but here goes: If this case had somehow survived the pleading stage, then and only then would we be in the discovery stage. And I'm going to guess that one of the first documents to be produced would be a release.
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I forgot about this for a while, but guess what...the case is still pending!
On January 27, 2022, the defendants filed a motion to dismiss. For the non-lawyers here, a motion to dismiss is a non-evidence based motion. It accepts all of the "well-pleaded" facts in the complaint as true and says that, even though all these facts are true, there no valid legal claim. A "well-pleaded" fact is one that is not conclusory in nature. The only "evidence" that the court can consider are things that are well-established matters of public record (e.g., what time the sun rose and set on a particular day or statements made by the plaintiff publicly) (there's a lot more to judicial notice than that.
The motion to dismiss starts with the following statement: "The Second Amended Complaint is Spencer Elden’s third attempt to contrive a claim for money by pretending that the 30-year old photograph on the cover of Nirvana’s album 'Nevermind'—one of the most famous and widely-possessed photographs in history—is 'child pornography.' While there is no serious question that the photograph is not 'child pornography,' Elden’s case is long barred by the statute of limitations. For Elden, this is strike three. This case must end."
The motion focuses primarily on the statute of limitations argument (in a nutshell, the lawsuit should've been filed before Elden turned 28). The motion also makes an argument that he hasn't clearly articulated which defendants did what and that, as a result, even if the case survives the SOL issue, some of the defendants should be dismissed.
The plaintiff's opposition essentially argues that he's entitled to damages based on the alleged violations occurring during the 10 years prior to the filing of the complaint. In other words, the plaintiff argues that there's a "rolling" statute of limitations. Not surprisingly, the defendants' reply brief, filed on February 10, 2022, argues that the SOL is not of the "rolling" variety.
The motion to dismiss has been under submission for the past nearly four months. I didn't read the legal argument sections of the motion and don't have any knowledge otherwise about whether the SOL for "child pornography" is a "rolling" SOL. I guess we'll see, but it wouldn't surprise me if the court denied the motion, thereby forcing the issue.
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All right, I think it's safe to say that this case is officially obviously over.
https://www.rollingstone.com/music/music-news/nirvana-wins-nevermind-baby-lawsuit-dismissal-1234586628/
In an eight-page ruling, U.S. District Judge Fernando Olguin wrote that the lawsuit would grant the defendants’ motion for dismissal again on the grounds that Elden waited too long to file the lawsuit, based on a 10-year statute of limitations.
“In short, because it is undisputed that [Elden] did not file his complaint within ten years after he discovered a violation… the court concludes that his claim is untimely,” Olguin wrote.
The judge continued, “Because plaintiff had an opportunity to address the deficiencies in his complaint regarding the statute of limitations, the court is persuaded that it would be futile to afford plaintiff a fourth opportunity to file an amended complaint.”
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So basically the judge said...
...nevermind.
Sorry.
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All right, I think it's safe to say that this case is officially obviously over.
https://www.rollingstone.com/music/music-news/nirvana-wins-nevermind-baby-lawsuit-dismissal-1234586628/
In an eight-page ruling, U.S. District Judge Fernando Olguin wrote that the lawsuit would grant the defendants’ motion for dismissal again on the grounds that Elden waited too long to file the lawsuit, based on a 10-year statute of limitations.
“In short, because it is undisputed that [Elden] did not file his complaint within ten years after he discovered a violation… the court concludes that his claim is untimely,” Olguin wrote.
The judge continued, “Because plaintiff had an opportunity to address the deficiencies in his complaint regarding the statute of limitations, the court is persuaded that it would be futile to afford plaintiff a fourth opportunity to file an amended complaint.”
Not so fast. Two days after your post, Elden appealed the decision to the 9th Circuit. It'll be a good 18+ months before it's really over.
Billable hours for EVERYONE (at least on the defense side)!
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https://loudwire.com/nirvana-nevermind-baby-spencer-eldon-lawsuit-revived
The moron is back again. Doesn't this guy ever gonna learn he's not gonna get a red cent?
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https://loudwire.com/nirvana-nevermind-baby-spencer-eldon-lawsuit-revived
The moron is back again. Doesn't this guy ever gonna learn he's not gonna get a red cent?
It's not so much that he's back; rather, the 9th Circuit ruled on the appeal that was filed in September 2022.
In a nutshell, "We hold that, because each republication of child pornography may constitute a new personal injury, Elden’s complaint alleging republication of the album cover within the ten years preceding his action is not barred by the statute of limitations. . . ." I should have seen this coming. I didn't read the entire opinion, but it's a pretty non-controversial statute of limitations ruling.
Now's when the billable hours will really kick in.
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Well, then. When they get to the 40th anniversary of Nevermind, they probably will have to re-release it with a different album cover to not cause more trouble, legally?