‘Nirvana baby’s’ child porn lawsuit over Nevermind album cover is thrown out by judge
- Spencer Elden, now 30, says he was sexualised and made to look like a sex worker in the iconic image of a naked baby swimming towards a dollar bill
- He is seeking US$150,000 from the band’s surviving members, as well as Kurt Cobain’s widow, Courtney Love, and a number of record companies
A judge has essentially said “nevermind” to a lawsuit brought by the so-called “Nirvana baby” who was featured on the rock band’s iconic Nevermind cover and who is now as old as the 30-year-old album.
US District Court Judge Fernando M. Olguin ordered on Monday that artist Spencer Elden’s child pornography lawsuit against Nirvana and its associates be dismissed after Elden missed a deadline to respond to a December motion to have it thrown out, according to an order reviewed by the Los Angeles Times on Tuesday.
In August, Elden – the naked baby swimming to a dollar-bill bait on the album cover – filed a US$150,000 federal lawsuit in California against the surviving members of Nirvana, Dave Grohl and Krist Novoselic, as well as Kurt Cobain’s widow, Courtney Love, who is the executor of his estate, and a number of record companies connected to the album.
The suit also named former Nirvana drummer Chad Channing, who was replaced by Grohl before the album was recorded and the cover photo was even shot.
Elden’s lawyer claimed that by featuring a then four-month-old Elden with his genitalia exposed, the defendants sexualised the child, and further claimed that by altering the image to include a dollar bill on a fish hook, they made him look “like a sex worker”.
“Defendants intentionally commercially marketed Spencer’s child pornography and leveraged the shocking nature of his image to promote themselves and their music at his expense,” the lawsuit said.
Elden’s family reportedly received US$200 for taking part in the shoot and a platinum album award (one sold at auction in 2015 for about US$4,500) and a teddy bear.
Last month, lawyers for Grohl, Novoselic, Weddle, Love, Cobain, Nirvana, L.L.C., MCA Records, UMG Recordings, Inc., Universal Music Group, Inc., the David Geffen Company and Geffen Records filed a motion to dismiss the lawsuit – specifically Elden’s first amended complaint – arguing that Elden had “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’.”
Nevermind turns 30: Dave Grohl on making Nirvana’s seminal album
Their motion was set for oral argument on January 20, but required Elden to file his opposing motion by December 30. He missed that deadline, and Olguin ordered that Elden’s case be dismissed and to vacate the upcoming hearing date, the order said.
However, Olguin said that Elden could have “one last opportunity to amend his complaint” and refile the lawsuit by January 13 (and the defendants have until January 20 to respond). Another amended complaint would supersede Elden’s previous complaint, which apparently had “defects” outlined in the defendants’ December motion to dismiss.
“Plaintiff [Elden] 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,” Olguin’s order said.
Nevermind celebrated its 30th anniversary last year and contained Nirvana’s enormous hit “Smells Like Teen Spirit”. The album has sold at least 30 million copies and is still available with the original cover image intact.
