Nirvana have called for Spencer Elden's case to be dismissed with prejudice, meaning he could never file another attempted lawsuit.
Elden initially sued Nirvana – along with co-defendants including Universal Music Group, the David Geffen Company, Courtney Love as executor of Kurt Cobain’s estate and photographer Kirk Weddle – in August 2021, claiming they 'leveraged the shocking nature' of his image as a naked baby swimming toward a dollar bill on a fishhook on the band's Nevermind album cover to make millions of dollars 'at his expense'.
The case was dismissed by Judge Fernando M. Olguin on January 3 'with leave to amend', meaning that Elden could refile with an amended argument by January 13, which he did.
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The second complaint suggests that the band 'intentionally commercially marketed the child pornography depicting Spencer and leveraged the lascivious nature of his image to promote the Nevermind album, the band, and Nirvana’s music, while earning, at a minimum, tens of millions of dollars in the aggregate'.
The lawsuit went on to explain that Elden will 'continue to suffer damages as long as the violations described above persist'.
Now, Nirvana's lawyers are reportedly seeking for the case to be dismissed with prejudice, which would mean Elden would not be able to refile again.
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The band's lawyers said, 'For Elden, this is strike three. This case must end,' and claimed the case should be dismissed 'on the ground that it is barred by the statute of limitations'.
They also added that 'no amendment [from Elden] is possible to salvage the claim' and said, 'In his ever-shrinking pleading, Elden has now dismissed all but one of the myriad state and federal law claims he previously attempted to charge against Defendants.'
'The time has run. Elden’s decision to not sue these defendants for the past 30 years, despite his decades-long knowledge of their same and unvaried conduct, is dispositive of his claim. It is as simple as that,' they concluded.
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In December, the band's representatives issued a statement claiming that Elden has benefited from the album cover and recreated the image himself.
They said, 'He has recreated the photograph for a fee many times; the title of the album Nevermind has been tattooed on his chest; has appeared on a talk show with a flesh-colored jumpsuit who parodies himself; has autographed copies of the album cover for sale on eBay, and he has used the connection to try to pick up women.'
They added, 'There is no doubt that Elden’s claims will fail on the merits.'
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The court hearing is scheduled to take place on February 24 in Los Angeles.
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Shola Lee