A federal judge has dismissed a lawsuit by a 30-year-old man who claims a 4-month-old nude image of him on the cover of Nirvana’s 1991 album “Nevermind” is child pornography.
Judge Fernando M. Olguin agreed Monday to dismiss the lawsuit against defendants who include surviving Nirvana members Dave Grohl and Krist Novoselic, as well as Kurt Cobain’s estate, but left the door open for plaintiff Spencer Elden resubmit an amended version.
The refusal to proceed with the lawsuit came after Elden’s attorneys failed to file an opposition to the defendants’ motion to dismiss by the Dec. 30 deadline. Lawyers declined to comment Tuesday.
The lawsuit filed in August in federal court in California alleges that Elden suffered “lifelong damages” as the band and others profited from the widely circulated image of him nude underwater in which he appears to be swimming toward a dollar bill. held with a hook.
The motion to dismiss the lawsuit, filed Dec. 22 by Nirvana’s attorneys, asserts that the lawsuit was filed long after the 10-year statute of limitations of one of the laws that were considered to bring the case and that another of the laws they mention was not drafted until 2003 and is not retroactive.
The motion notes that the lawsuit is “on its face not serious” and that Elden’s conduct reflects this.
“Elden has spent three decades profiting from his fame as the self-styled ‘Baby Nirvana,'” the document states. “He has recreated the photograph for fees many times and has the album title ‘Nevermind’ tattooed on his chest; he’s appeared on a talk show wearing a full-body ecru parody suit and autographed copies of the album cover to sell on eBay; he has even used the connection to try to attract women.”
The judge gave Elden’s attorneys until Jan. 27 to file an amended lawsuit that addresses the issues raised in the defendants’ motion or it will be dismissed for good.
One of Elden’s attorneys, Maggie Mabie, told The Associated Press in August that she filed the lawsuit until then “because she finally had the courage to hold those involved accountable.”
Mabie said that even though the photo is 30 years old, the offenses were not statute-barred under federal child pornography law for a number of reasons, including the fact that the image continues to circulate and continues to generate profits.
The lawsuit sought at least $150,000 from each of the defendants, who number more than a dozen and include record labels involved in the release and re-release of “Nevermind” as well as cover photographer Kirk Weddle.
Elden’s father was friends with Weddle when the photographer photographed several babies swimming in different scenes at the Rose Bowl Aquatic Center in Pasadena, California.
At the time the photo was taken, Nirvana was a little-known band and was unaware that they were making an album that would define a generation like “Nevermind,” their first major-label release whose songs include “Smells Like Teen Spirit,” “Come as You Are” and “Lithium”. Cobain committed suicide in 1994.
The Associated Press does not typically name people who claim to have been sexually abused unless they speak out publicly as Elden has done.
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