Judge Fernando Olguin dismisses the suit filed by Spencer Elden 'with leave to amend' and gives the man, who's featured on the 1991 album's cover when he was a baby, a chance to refile a new complaint.
- Jan 5, 2022
AceShowbiz - Nirvana has scored a win in a child exploitation lawsuit for the nude baby photo on their "Nevermind" album cover. A judge has dismissed the lawsuit filed by Spencer Elden, the man who was featured on the album's cover when he was a baby, against the surviving members of the band, including Dave Grohl and Krist Novoselic as well as Kurt Cobain's widow Courtney Love.
Judge Fernando Olguin dismissed the case in California District Court on Monday, January 3 after lawyers for Spencer missed the deadline to file an opposition to the Nirvana estate's request to dismiss in December. At the time, the attorneys stated that Spencer had "spent three decades profiting from his celebrity as the self-anointed 'Nirvana Baby'."
However, Judge Fernando's dismissal was made "with leave to amend." Therefore, although the lawsuit has been dismissed, Spencer has been given a second chance to refile a new complaint, one which makes good the "defects" alleged in the defendants' motion to dismiss, such as the allegation that the suit is time-barred. If Spencer misses the new deadline of January 13, the suit will be dismissed "without prejudice" and the matter will be considered closed.
In Spencer's initial suit, he seeks $150,000 from each of the defendants or unspecified damages to be determined at trial. In addition, he requests "attorney's fees and other litigation costs reasonably incurred" to be covered.
"Spencer's 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 court documents read. "Neither Spencer nor his legal guardians ever signed a release authorizing the use of any images of Spencer or of his likeness, and certainly not of commercial child pornography depicting him."
Spencer went on to argue that the band "failed to take reasonable steps to protect him and prevent his widespread sexual exploitation and image trafficking." As a result, he "has suffered and will continue to suffer lifelong damages."
Though Spencer recreated the image multiple times over the years and had the word "Nevermind" tattooed on his chest, in a 2016 interview with GQ Australia, he revealed that he had recently become unhappy about the "Nevermind" artwork. "It's f**ked up," he confessed. "I'm pissed off about it, to be honest."
In response, lawyers for Nirvana stated that Spencer once appeared on a talk show wearing a self-parodying nude-colored onesie. The attorneys added that he had "used the connection to try to pick up women."
The legal team said that the statute of limitations had expired and that Spencer's claims were too "absurd" to even consider. "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 lawyers continued.
