An attorney for “Nirvana baby” Spencer Elden said the lawsuit will be re-filed within the coming weeks.
A California judge has dismissed a lawsuit filed against former Nirvana members, which claimed that Nevermind’s album artwork—featuring a nude infant swimming underwater—was essentially child pornography.
As LegalReader.com reported earlier this year, the lawsuit was first filed by Spencer Elden in August 2021.
Elden, says National Public Radio, said that Nirvana knowingly distributed a nude photograph of him as a baby on the cover of its 1991 album, then profited from it.
In his complaint, Elden noted that he was only four months old when he was photographed, and that there is no way he could have consented to his image being replicated and viewed by millions of people around the world.
Now 30, Elden sought an estimated $150,000 in damages for what he called the distribution of child exploitation images.
However, the defendants in the case—including former bands members, Kurt Cobain’s estate, photographer Kirk Weddle, Universal Music, Geffen Records, Warner Records, and MCA Music—filed a motion to dismiss in December.
In their filing, the defendants opined that Elden had spent years enjoying quasi-celebrity status as the “Nirvana baby.” Not only did Elden have a “Nevermind” tattoo across his chest, but had recreated the iconic photograph on the album’s 10th, 17th, 20th, and 25th anniversaries.
“Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby,’” the motion to dismiss said. “He has re-enacted 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.”
While Elden had until December 30th to respond to the motion, his legal team missed the deadline and the case was automatically discarded.
In his dismissal, Judge Fernando M. Olguin of the Central District Court in California said that Elden and his attorneys have until January 13th to re-file their case.
If Elden re-files sand the defendants file another motion to dismiss, both parties will meet on January 20th.
Marsh Law, the firm representing Elden, said it plans to re-file their client’s complaint “very soon.”
“In accordance with the court’s order we will be filing a Second Amended Complaint very soon,” Marsh Law said in a statement. “We are confident that Spencer will be allowed to move forward with the case.”