According to Variety, the lawsuit filed against the surviving members of NIRVANA as well as the estate of Kurt Cobain by the man who claims he was the baby featured on the cover of the band's "Nevermind" album, has been dismissed.
Last August, Spencer Elden filed the lawsuit, alleging the photo of the baby reaching for a dollar in a swimming pool violated federal child pornography statutes and arguing child sexual exploitation. He also claimed the image on the cover was taken and used without his consent.
On Monday (January 3),Judge Fernando M. Olguin, who was presiding over the case at the U.S. District Court in Central California, dismissed the case after Elden missed his December 30 deadline to file an opposition to the defendants' motion to dismiss. The dismissal was made "with leave to amend," meaning Elden will have one more chance to issue a second amended complaint with a new deadline of January 13. If he doesn't, the suit will be dismissed without prejudice (which means another suit could be filed in the future). If Elden does refile by January 13, the defendants' lawyers will have a further two weeks to file a reply to the new suit.
"Plaintiff is cautioned that 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 stated.
In last month's motion to dismiss, NIRVANA, as well as Kurt Cobain's widow, Courtney Love, had asked the court to throw out the lawsuit, saying Elden's claim that the photograph on the "Nevermind" cover is child pornography is "not serious" and insisting that his claim is "barred by the applicable statute of limitations." Federal child pornography law has a 10-year statute of limitations, beginning when a victim "reasonably discovers" the violation itself or the harm caused by it.
"Elden has spent three decades profiting from his celebrity as the self-anointed 'Nirvana Baby'," read the motion which was filed on December 22. "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 motion added: "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.
"The 'Nevermind' cover photograph was taken in 1991. 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.”
The motion went on to say: "In addition to his child pornography claim, Elden has alleged that the creation of the photograph for the album cover art entailed the sex trafficking of Elden when he was a baby. Setting aside that this premise is absurd, the statute Elden invokes to cover conduct in 1991, became effective on December 19, 2003 and has no retroactive application to conduct by a defendant that pre-dates its effective date."
Late last year, Elden amended his lawsuit against NIRVANA to include the allegation that the photographer hired to take the photo, Kirk Weddle, also shot images of Elden styled to look like Playboy founder Hugh Hefner. The new filing also drops former NIRVANA drummer Chad Channing as a defendant in the case.
According to Rolling Stone, Elden's updated complaint cited personal journal entries from late NIRVANA frontman Kurt Cobain, which were published by Riverhead Books in 2002, in an apparent attempt to prove the claim that the photographer intended the cover image to be sexual in nature.
"Undated journals written by Cobain sketch the album cover in a sexual manner, with semen all over it," the document stated. "In several instances, the journals describe Cobain's twisted vision for the 'Nevermind' album cover, along with his emotional struggles: 'I like to make incisions into the belly of infants then fuck the incision until the child dies.'"
The documents also repeated the claim that Weddle intended to "trigger a visceral sexual response from the viewer" by activating "Spencer's 'gag reflex' before throwing him underwater in poses highlighting and emphasizing Spencer's exposed genitals." The documents add: "Weddle soon after produced photographs of Spencer dressed up and depicted as Hugh Hefner."
When Elden first filed his lawsuit against the surviving members of NIRVANA as well as the estate of Kurt Cobain in August, he alleged the photo of the baby reaching for a dollar in a swimming pool violated federal child pornography statutes and argued child sexual exploitation.
A month after filing his lawsuit, Elden, who is now 30, requested his genitalia be removed from "all future album covers" on the 30th anniversary of the project.
"Today, like each year on this date, our client Spencer Elden has had to brace himself for renewed unwanted attention from the media and fans alike throughout the world," his attorneys told USA Today. "This is a choice that he has never had."
The attorneys said that they planned on continuing the legal proceedings in order to "bring long-awaited privacy and dignity back to our client."
"We implore the NIRVANA defendants to right the wrongs of their past, by acknowledging the harm they have perpetrated and redacting the image of Mr. Elden's genitalia from further reproductions of 'Nevermind' because behind every cover is a person pleading for their privacy back," they added.
A deluxe 30th-anniversary reissue of "Nevermind", featuring its original cover artwork, was made available on November 12.
In Elden's complaint filed in Los Angeles federal court, he claimed that his "identity and legal name are forever tied to the commercial sexual exploitation he experienced as a minor which has been distributed and sold worldwide from the time he was a baby to the present day."
According to the suit, the defendants "knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so. … Despite this knowledge, defendants failed to take reasonable steps to protect Spencer and prevent his widespread sexual exploitation and image trafficking."
Elden claimed that his parents never signed a release authorizing the use of the photos, which were taken in a Pasadena aquatic center in 1990. He alleged that the band promised to cover his genitals with a sticker, which was never incorporated into the album art.
The suit further alleged the defendants "used child pornography depicting Spencer as an essential element of a record promotion scheme commonly utilized in the music industry to get attention, wherein album covers posed children in a sexually provocative manner to gain notoriety, drive sales, and garner media attention, and critical reviews."
Elden sought damages of either $150,000 from each of the defendants or unspecified damages to be determined at trial, attorney fees, an injunction to prohibit all parties "from continuing to engage in the unlawful acts and practices described herein," and a trial by jury.
"The permanent harm he has proximately suffered includes but is not limited to extreme and permanent emotional distress with physical manifestations, interference with his normal development and educational progress, lifelong loss of income earning capacity, loss of past and future wages, past and future expenses for medical and psychological treatment, loss of enjoyment of life, and other losses to be described and proven at trial of this matter," the lawsuit stated.
Elden's parents were reportedly paid only $200 for the photos, and the shoot lasted around 15 seconds.
In a 2016 interview with Time magazine, Elden said: "It's a trip. Everyone involved in the album has tons and tons of money. I feel like I'm the last little bit of grunge rock. I'm living in my mom's house and driving a Honda Civic.
"It's hard not to get upset when you hear how much money was involved," Elden added. "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."
"Nevermind" has sold over 30 million copies worldwide and was certified diamond by the RIAA for sales in excess of 10 million copies in the U.S. alone.