A lawsuit brought against Nirvana by the ‘Nevermind baby’ has been dismissed by a US judge.
Spencer Elden claimed he was a victim of child sexual exploitation after he appeared on the cover of Nirvana’s 1991 album Nevermind when he was four months old.
The well-known image shows a young Elden naked in a swimming pool, however in the lawsuit filed in August, the now-30-year-old alleged that neither he nor his legal guardians signed a release authorising the use of his image, and that the cover artwork was a child sexual abuse image.
The lawsuit accused Nirvana and other defendants of having ‘knowingly produced, possessed and advertised commercial child pornography depicting Spencer’, though the Nirvana estate hit back in December with a request to dismiss the case.
Elden’s lawyers failed to meet a deadline to oppose the dismissal, and on Monday, January 3, the case was dismissed by Judge Fernando M. Olguin in Central California.
Olguin dismissed the case ‘with leave to amend’, noting that if Elden’s legal team have until January 13 to refile an opposition. If they do so, the court will ‘grant defendants’ Motion and give plaintiff one last opportunity to amend his complaint’. Nirvana’s estate would then have until January 27 to reply to the refiled suit.
Monday’s ruling, cited by Spin, reads, ‘Failure to timely file a Second Amended Complaint shall result in this action being dismissed without prejudice for failure to prosecute and/or failure to comply with a court order.’
Elden claimed that appearing on the cover of the Nevermind album caused him ‘extreme and permanent emotional distress with physical manifestations’, as well as the loss of education, wages and ‘enjoyment of life’, though Nirvana’s lawyers argued that Elden had ‘spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’.
In their request to dismiss the case, lawyers for the Nirvana estate said:
Elden’s claim that the photograph on the Nevermind album cover is ‘child pornography’ is, on its face, not serious.
A brief examination of the photograph, or Elden’s own conduct (not to mention the photograph’s presence in the homes of millions of Americans who, on Elden’s theory, are guilty of felony possession of child pornography) makes that clear.
Elden appears to have played into his role as the ‘Nirvana baby’ over the years by recreating the album image as he grew older and having ‘Nevermind’ tattooed on his chest. The band’s lawyers also claimed that Elden sold signed copies of the album on eBay.
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