A federal judge has dismissed a lawsuit by the man who was photographed for the cover of the album Nevermind by Nirvana as a baby. Spencer Elden was photographed swimming nude as an infant for the album cover, and last summer he sued the band for “commercial sexual exploitation.” According to a report by Deadline, his case has been dismissed.
U.S. District Judge Fernando M. Olguin granted the defendants’ motion to dismiss Elden’s lawsuit on Monday. He noted that Elden has “one last opportunity” to amend his complaint next week, which still leaves him a chance. Elden’s lawsuit targeted the band Nirvana, record companies, the widow of late frontman Kurt Cobain and a few others involved in the cover’s creation. He and his lawyers claim that Elden’s parents never signed a release authorizing the use of this photo, and that Elden has never received compensation for it.
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The infamous photo was taken in a Pasadena aquatic center in 1990, when Elden was just 4 months old. In their motion to dismiss, attorneys for the defendants argued that Elden’s charge of “commercial sexual exploitation” did not apply because the statute of limitations on that crime has expired. Beyond that, they argued that Elden “has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby,’” so they believe they would win the case on merit.
“Elden’s claim that the photograph on the Nevermind album cover is ‘child pornography’ is, on its face, not serious,” a brief from the attorneys reportedly reads. “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.”
Elden had requested a trial by jury and an award of $150,000 in damages from each of the 17 defendants he named in the lawsuit. As the dismissal notes, he has previously seemed relatively enthusiastic about his legacy in the music industry. Now a working artist, Elden recreated the photo himself and shared it online to mark the 15th and 25th anniversaries of Nevermind. In 2016, he told The New York Post that he even volunteered to do the cover nude again, but said that the photographer he worked with “thought that would be weird.” Elden has not commented publicly on the dismissal of his lawsuit.
