A judge has essentially said never mind to a lawsuit brought by the “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.
U.S. District Court Judge Fernando M. Olguin ordered 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 Times on Tuesday.
In August, Elden — the naked baby swimming to dollar-bill bait on the album cover — filed a $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 attorney claimed that by featuring a then 4-month-old Elden with his genitalia exposed, the defendants sexualized 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 $200 for participating in the shoot and a platinum album award (one sold at auction in 2015 for about $4,500) and a teddy bear.
Last month, attorneys for Grohl, Novoselic, Love, Cobain, Nirvana, photographer Kirk Weddle, MCA Records, UMG Recordings Inc., Universal Music Group Inc., the David Geffen Co. 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.’”
Their motion was set for oral argument on Jan. 20, but required Elden to file his opposing motion by Dec. 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 Jan. 13 (and the defendants have until Jan. 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.