NIRVANA 'Nevermind' Baby Lawsuit Dismissed By Judge
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According to Variety, the lawsuit filed against the surviving members of NIRVANA as well as the estate of Kurt Cobain by the man who claims he was the baby featured on the cover of the band's "Nevermind" album, has been dismissed.
Last August, Spencer Elden filed the lawsuit, alleging the photo of the baby reaching for a dollar in a swimming pool violated federal child pornography statutes and arguing child sexual exploitation. He also claimed the image on the cover was taken and used without his consent.
On Monday (January 3), Judge Fernando M. Olguin, who was presiding over the case at the U.S. District Court in Central California, dismissed the case after Elden missed his December 30 deadline to file an opposition to the defendants' motion to dismiss. The dismissal was made "with leave to amend," meaning Elden will have one more chance to issue a second amended complaint with a new deadline of January 13. If he doesn't, the suit will be dismissed without prejudice (which means another suit could be filed in the future). If Elden does refile by January 13, the defendants' lawyers will have a further two weeks to file a reply to the new suit.
"Plaintiff is cautioned that 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 ruling stated.
In last month's motion to dismiss, NIRVANA, as well as Kurt Cobain's widow, Courtney Love, had asked the court to throw out the lawsuit, saying Elden's claim that the photograph on the "Nevermind" cover is child pornography is "not serious" and insisting that his claim is "barred by the applicable statute of limitations." Federal child pornography law has a 10-year statute of limitations, beginning when a victim "reasonably discovers" the violation itself or the harm caused by it.
"Elden has spent three decades profiting from his celebrity as the self-anointed 'Nirvana Baby'," read the motion which was filed on December 22. "He has reenacted 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.
The motion added: "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.
"The 'Nevermind' cover photograph was taken in 1991. It was world-famous by no later than 1992. 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.”
In Elden's complaint filed in Los Angeles federal court, he claimed that his "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."According to the suit, the defendants "knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so. … Despite this knowledge, defendants failed to take reasonable steps to protect Spencer and prevent his widespread sexual exploitation and image trafficking."
Elden claimed that his parents never signed a release authorizing the use of the photos, which were taken in a Pasadena aquatic center in 1990. He alleged that the band promised to cover his genitals with a sticker, which was never incorporated into the album art.
The suit further alleged the defendants "used child pornography depicting Spencer as an essential element of a record promotion scheme commonly utilized in the music industry to get attention, wherein album covers posed children in a sexually provocative manner to gain notoriety, drive sales, and garner media attention, and critical reviews."
Elden sought damages of either $150,000 from each of the defendants or unspecified damages to be determined at trial, attorney fees, an injunction to prohibit all parties "from continuing to engage in the unlawful acts and practices described herein," and a trial by jury.
"The permanent harm he has proximately suffered includes but is not limited to extreme and permanent emotional distress with physical manifestations, interference with his normal development and educational progress, lifelong loss of income earning capacity, loss of past and future wages, past and future expenses for medical and psychological treatment, loss of enjoyment of life, and other losses to be described and proven at trial of this matter," the lawsuit stated.
Elden's parents were reportedly paid only $200 for the photos, and the shoot lasted around 15 seconds.
In a 2016 interview with Time magazine, Elden said: "It's a trip. Everyone involved in the album has tons and tons of money. I feel like I'm the last little bit of grunge rock. I'm living in my mom's house and driving a Honda Civic.
"It's hard not to get upset when you hear how much money was involved," Elden added. "I go to a baseball game and think about it: 'Man, everybody at this baseball game has probably seen my little baby penis,' I feel like I got part of my human rights revoked."
"Nevermind" has sold over 30 million copies worldwide and was certified diamond by the RIAA for sales in excess of 10 million copies in the U.S. alone.
(Source: www.blabbermouth.net)
