Spencer Elden’s lawsuit against the American rock band Nirvana was dismissed by a federal judge in Los Angeles, on Tuesday, after Elden missed a deadline to respond to the defendants’ appeal to dismiss the case, according to a Reuters report.
US District Judge Fernando Olguin gave Elden time until January 13 to file an amended complaint to address alleged problems the defendants identified in his case, the report added.
Elden, who appeared on the cover of the band’s 1991 album Nevermind, sued Nirvana in August 2021 and alleged that the nude image of him as a baby constitutes child pornography. He sought damages worth $150,000 from each of the defendants that includes surviving band members Dave Grohl and Krist Novoselic.
The album cover depicted a naked four-month old Elden in a swimming pool, trying to grab a note stuck to a fishhook, which Elden’s lawyer Robert Y Lewis argued in the suit, made him appear “like a sex worker.” Lewis added that Elden’s parents had not consented to the usage of the image.
The band’s attorney, Bert H Deixler, sought for the dismissal of the suit and called the complaint absurd in that it is time-barred.
He also noted that the 30-year-old Elden has “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.’ He has re-enacted 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-coloured 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.”
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It is notable that prior to slapping the band with the lawsuit, Elden recreated the iconic cover for the 17th, 20th, and the 25th anniversaries of the record, and called the experience “cool, but weird” during a 2016 interview.
However, that same year, while speaking to Time magazine, Elden said that he was “upset” while growing up. “I never met anybody. I didn’t get a call or email. I just woke up already being a part of this huge project. It’s pretty difficult – you feel like you’re famous for nothing,” he had said.