A judge has dismissed a lawsuit against Nirvana that was filed by the man who was photographed as a baby for the classic album’s cover art.
Spencer Elden, 30, took legal action against the band over the image of him as an infant, in which he appears naked and swimming after a dollar bill in a swimming pool. He claimed that he has suffered “lifelong damages” from the photo and that it was “commercial child sexual exploitation” and child pornography.
Representatives for Nirvana refuted the claims in a statement issued last month, saying the lawsuit was “not serious” and is beyond the statute of limitations. The suit would only apply within 10 years of Elden finding out he was the baby on the cover art, with the group rejecting the idea that he had only discovered this in the last decade.
“But the ‘Nevermind’ cover photograph was taken in 1991,” the statement read. “It was world-famous by no later than 1992. Long before 2011, as Elden has pled, Elden knew about the photograph and knew that he (and not someone else) was the baby in the photograph. He has been fully aware of the facts of both the supposed ‘violation’ and ‘injury’ for decades.”
It went on to cite occasions where Elden seemingly embraced being featured on the album art, claiming that he’d “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’”.
Cover of Nirvana’s ‘Nevermind’. CREDIT: Nirvana/Universal Music
Now, as Spin reports, the lawsuit has been dismissed in U.S. District Court in Central California. According to the outlet, Judge Fernando M. Olguin rejected the case yesterday (January 3) “with leave to amend”.
It is said that Elden’s legal team had until last Thursday (December 30) to file an opposition to the Nirvana estate’s request to dismiss the suit, but they failed to meet the deadline. They now have until next Thursday (January 13) to refile a second complaint.
The court said that this will “grant defendants’ Motion and give plaintiff one last opportunity to amend his complaint”. Should the deadline be missed, there will not be an opportunity to refile. If they make the date, Nirvana’s estate has until January 27 to reply to the refiled suit.
“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,” the ruling said.
A number of legal experts previously said they believed the case was likely to be dismissed. Entertainment litigation partner Bryan Sullivan told The Hollywood Reporter that there being no release form, as Elden claims, “does not mean he has a claim for child pornography”.
“As to the right of privacy, you can waive it by your actions or by his parents’ actions in allowing him to be photographed,” he explained.
Elsewhere in the recent statement from Nirvana’s reps, it was noted that Elden had recreated the ‘Nevermind’ cover photo on more than one occasion and has the record’s title tattooed on his chest.
The original lawsuit was filed in August 2021, with Elden seeking $150,000 (£112k) in damages from Dave Grohl, Krist Novoselic, the estate of Kurt Cobain, album artwork photographer Kirk Weddle and designer Robert Fisher. The labels responsible for the album’s release, including Universal Music and Geffen Records, were also named.
In addition, Elden wants the cover to be altered for any future ‘Nevermind’ re-releases. “If there is a 30th-anniversary re-release, he wants for the entire world not to see his genitals,” his lawyer Maggie Mabie said. A 30th-anniversary reissue was then released last November, featuring the original photograph.