A California judge on Monday tossed a lawsuit filed against Nirvana by the man who appeared as a naked baby on the cover of their breakthrough album “Nevermind.”
Spencer Elden, now 30, filed the lawsuit against against Kurt Cobain’s estate and Nirvana’s surviving members last year — accusing them of sexual exploitation and child pornography.
Elden claimed the artwork constituted child sexual abuse and that he’d suffered “lifelong damage” from having his naked body plastered on the album cover.
Federal Judge Fernando M. Olguin threw out the case late Monday after Elden missed his Dec. 30 deadline to file a response to Nirvana’s motion to dismiss.
The judge dismissed the case “with leave to amend” — meaning Elden and his lawyers have until Jan. 13 to refile the case. If he misses the deadline, the case will be dismissed without prejudice and closed.
In the motion to dismiss, which was filed two weeks ago, Nirvana claimed Elden’s allegations lacked merit and smelled like an “absurd” cash grab.
“Elden’s claim that the photograph on the “Nevermind” album cover is ‘child pornography’ is, on its face, not serious,” Nirvana’s lawyers said.
They added that anyone who had a copy of the album would “on Elden’s theory [be] guilty of felony possession of child pornography.”
Nirvana’s legal team also argued that Eden had previously cashed in on being the “Nirvana baby.”
“He has re-enacted the photograph in exchange for a fee, many times; he has had the album title… 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 lawyers argued.
The lawyers who filed the motion represent Nirvana’s surviving members Dave Grohl and Krist Novoselic, Kurt Cobain’s widow Courtney Love, and Kirk Weddle, the man who photographed the cover image.
In his initial complaint, Eden — who was 4 months old at the time of the 1991 underwater photo — claimed neither he nor his guardians consented to the naked photoshoot.
Eden claimed the band went back on an alleged promise to conceal his genitals on the album cover — and the band intentionally “leveraged the shocking nature of his image to promote themselves and their music at his expense.”
“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,” Eden’s complaint said.
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