A judge in California has dismissed a lawsuit against Nirvana made by Spencer Elden, who appeared as a naked baby on the cover of their album Nevermind.
Elden sued the band last year, alleging sexual exploitation, and saying the artwork constituted child sexual abuse.
Now 30, he said the infamous image had caused him “extreme and permanent emotional distress” as well as loss of wages and “enjoyment of life”.
Nirvana filed to dismiss last month, saying Elden’s arguments lacked merit.
“Elden’s claim that the photograph on the Nevermind album cover is ‘child pornography’ is, on its face, not serious,” their lawyers said, noting that anyone who owned a copy of the record would “on Elden’s theory [be] guilty of felony and possession of child pornography”.
They continued by noting that, until recently, Elden had seemed to enjoy the notoriety of 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-coloured 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 was filed by lawyers representing surviving Nirvana members Dave Grohl and Krist Novoselic; Kurt Cobain’s widow Courtney Love; and Kirk Weddle, the photographer of the cover image.
Regardless of the merits of Elden’s case, they argued, the statute of limitations on his claims had expired in 2011, meaning he was too late to sue.
His lawyers have argued that the statute of limitations does not apply, as long as Nevermind continues to be sold in its current form.
“Child pornography is a forever crime,” Marsh Law told Variety in a statement last year. “Any distribution of or profits earned from any sexually explicit image of a child not only creates longstanding liability but also breeds lifelong trauma. This is common for all of our clients who are victims of actively traded child pornography, regardless of how long ago the image was created.”
Elden’s team had until 30 December to respond to Nirvana’s motion to dismiss but missed the deadline.
As a result, Judge Fernando M Olguin dismissed the case “with leave to amend” – meaning his team have until 13th January, this year, to refile the case with appropriate changes. – BBC