The lawsuit filed against Nirvana by Spencer Elden – who appeared on the cover of the band’s iconic album, Nevermind, in 1991 – has been dismissed by a judge.
As reported by Spin magazine (opens in new tab), Judge Fernando M. Olguin dismissed the case on Monday at California District Court “with leave to amend” after Elden’s legal team missed a December 30 deadline to respond to Nirvana estate’s request for the lawsuit to be dismissed.
Elden now has until January 13 to refile a second lawsuit, with the court ruling it will “grant defendants’ Motion and give plaintiff one last opportunity to amend his complaint”.
In paperwork viewed by Spin, the ruling said, “Failure to timely file a Second Amended Complaint shall result in this action being dismissed without prejudice for failure to prosecute and/or failure to comply with a court order.”
The new deadline marks the final opportunity for Elden and his team to refile their complaint, which alleged child sexual exploitation over the use of the Nevermind image.
Arguing that the image constitutes child pornography, Elden originally sought damages of at least $150,000 from each of the 15 defendants, including surviving band members Dave Grohl and Krist Novoselic.
In the original lawsuit, Elden said he has “suffered and will continue to suffer lifelong damages” due to the artwork, and that his “true identity and legal name are forever tied to the commercial sexual exploitation he experienced as a minor which has been distributed and sold worldwide from the time he was a baby to the present day”.
The Nirvana estate responded to Elden’s lawsuit on December 22, saying (via Billboard (opens in new tab)), “Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby'
“But the Nevermind cover photograph was taken in 1991. It was world-famous by no later than 1992,” the estate continued. “Long before 2011, as Elden has pled, Elden knew about the photograph, and knew that he (and not someone else) was the baby in the photograph. He has been fully aware of the facts of both the supposed ‘violation’ and ‘injury’ for decades.
“Elden’s claim that the photograph on the Nevermind album cover is ‘child pornography’ is, on its face, not serious.
“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 spoke positively of his involvement in the photoshoot during an interview with The Guardian (opens in new tab) in 2015, though told Time Magazine (opens in new tab) in 2016 he had become "upset" about the attributed fame.