The lawsuit filed by the Nevermind baby accusing Nirvana and others of child pornography has been dismissed.
In a ruling issued Monday Jan. 3, Judge Fernando M. Olguin tossed the case after the plaintiff, Spencer Elden — who appeared on the album cover nude when he was four months old — failed to respond to a motion to dismiss filed by Nirvana and the other defendants on Dec. 22, 2021. Oral arguments regarding the motion had been set for Jan. 20, and Elden’s legal team had been given a deadline of Dec. 30 to respond.
Per the ruling, however, Elden will have one more chance to issue a second amended complaint with a new deadline of Jan. 13. If he doesn’t, the suit will be dismissed without prejudice (which means another suit could be filed in the future). Elden’s attorneys at Marsh Law said they will pursue an amended complaint, telling Rolling Stone, “In accordance with the Court’s order we will be filing a Second Amended Complaint very soon. We are confident that Spencer will be allowed to move forward with the case.”
Lawyers for Nirvana and the other defendants declined to comment.
Elden, now 30, sued Nirvana, Kurt Cobain’s estate, photographer Kurt Weddle, and various record labels back in August, alleging each “knowingly produced, possessed, and advertised commercial child pornography,” and that they “failed to take reasonable steps to protect Spencer and prevent his widespread sexual exploitation.” While Elden had long embraced the fame that came with being the Nevermind baby, in the suit he claimed he has “suffered and will continue to suffer lifelong damages.”
In the motion to dismiss the suit, Nirvana’s lawyers noted Elden’s frequent willingness to associate himself with the Nevermind cover, recreating the photograph in exchange for money, getting the album title tattooed on his chest, selling autographed copies of the album cover on eBay, and allegedly using the connection to flirt with women. The primary argument of the motion to dismiss, however, was that the statute of limitations on Elden’s allegations were up.
“There is no doubt that Elden’s claims will fail on the merits,” Nirvana’s lawyers wrote. “Elden’s claims fail, at the outset, because they are time-barred. Elden asserts two causes of action, one under the federal statute that permits victims of certain federal child pornography criminal offenses to sue for civil damages; and another under the federal statute that permits victims of certain trafficking crimes to sue for civil damages. Neither cause of action is timely.”