A third lawsuit alleging that the artwork for Nirvana‘s second album ‘Nevermind’ (1991) constitutes child pornography has been dismissed by a US District Judge in Los Angeles.
Spencer Elden, who appeared as a baby on the classic record’s front cover, had sought damages from the surviving members of the band (Dave Grohl and Krist Novoselic) as well as the estate of Kurt Cobain, photographer Kirk Weddle, and numerous record labels.
Elden, now 31-years-old, was four months old when he was photographed by Weddle for the artwork.
The latest ruling will prevent Elden from filing a fourth lawsuit. Lawyers representing Nirvana have in turn claimed that the suit has come to a “final conclusion”, although Elden has said he will appeal.
“In short, because it is undisputed that [Elden] did not file his complaint within ten years after he discovered a violation… the court concludes that his claim is untimely,” District Judge Fernando Olguin wrote (via Rolling Stone).
“Because plaintiff had an opportunity to address the deficiencies in his complaint regarding the statute of limitations, the court is persuaded that it would be futile to afford plaintiff a fourth opportunity to file an amended complaint.”
Bert Deixler, a lawyer for Nirvana, told Reuters: “We are pleased that this meritless case has been brought to a speedy final conclusion.”
Nirvana photographed in Japan in 1992. Credit: Gutchie Kojima/Shinko Music/Getty Images
Stating that Elden “intends to appeal” the decision, his lawyer Margaret Mabie added: “Under this reading of the law, child pornography remedies vaporise once the victim in the contraband image turns 28 years old. Under this logic, any child pornography producer […] could simply wait out the clock and then re-distribute abusive material with impunity.”
Mabie added: “The ‘Nevermind’ cover was created at time when Spencer was a baby and it is impossible for him to age out of this victimisation while his image remains in distribution.”
In a previous statement, representatives for Nirvana rejected the idea that Elden had only discovered he was the baby on the ‘Nevermind’ cover within the last decade. They also cited occasions where he’d seemingly embraced being featured on the artwork, claiming that Elden had “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’”.
The lawsuit alleged Elden’s guardians never signed a release authorising the commercial use of the image in question, that the defendants had “violated” federal child pornography statutes, and that Elden sustained “injuries” and “lifelong damages” as a result.
Back in January, a judge rejected the case “with leave to amend” in a US District Court in Central California. It came after Elden’s legal team failed to meet a deadline to file an opposition to the Nirvana estate’s request to dismiss the suit.
A number of legal experts had previously said they believed the case was likely to be dismissed. Entertainment litigation partner Bryan Sullivan told The Hollywood Reporter that there being no release form, as Elden claims, “does not mean he has a claim for child pornography”.
Following the dismissal, the court said Elden would be granted “one last opportunity to amend his complaint”. At the time, it was reported that Nirvana’s estate had until January 27 to reply to the refiled suit.
Elden re-filed the suit on January 12, removing a claim that the defendants “knowingly [benefited] from participation in what they know or should know is a sex trafficking venture”.
The original lawsuit was filed in August 2021, with Elden seeking $150,000 (£112k) in damages.
Additionally, Elden asked for the cover to be changed for any future ‘Nevermind’ re-releases last summer. “If there is a 30th-anniversary re-release, he wants for the entire world not to see his genitals, Mabie said. A 30th anniversary reissue was then released last November, featuring the original photograph.
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