Federal judge dismisses ‘child pornography’ lawsuit filed over Nirvana’s naked baby album cover

A federal judge in California has dismissed a lawsuit filed by a man who, as a baby, was featured naked on the cover of the band Nirvana’s “Nevermind” album.

Spencer Elden, now 30, filed suit against former members of the band — as well as the estate of the late Nirvana singer Kurt Cobain, among other parties — last year. According to The Associated Press, he was seeking $150,000 in damages from each defendant.

“Defendants used child pornography depicting Spencer as an essential element of a record promotion scheme commonly utilized in the music industry to get attention, wherein album covers posed children in a sexually seductive manner to gain notoriety, drive sales, and garner media attention and critical reviews,” his complaint read.

The album cover in question shows the then-4-month-old Eden naked in a pool of water, reaching for a dollar bill.

“The motion to dismiss filed Dec. 22 by Nirvana’s attorneys argues that the suit was filed well past the 10-year statute of limitations of one of the laws used as a cause of action, and that another law it cites wasn’t enacted until 2003 and was not retroactive,” the AP reported.

“Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby,‘” their motion read.

“He has reenacted 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-colored 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,” it added.

As Ars Technica reported, Judge Fernando Olguin of the U.S. District Court for the Central District of California did not issue a ruling on the merits of the case itself. But on Monday, he dismissed the suit due to a failure on the part of Elden’s legal team to respond to the motion to dismiss by the Dec. 30 deadline.

However, Elden and his team still have one more chance to respond by Jan. 13 before the case is permanently dismissed.

“[T]he court will grant defendants’ Motion and give plaintiff one last opportunity to amend his complaint,” the judge said.

“In preparing the Second Amended Complaint, plaintiff shall carefully evaluate the contentions set forth in defendants’ Motion, including defendants’ assertions that plaintiff’s claims pursuant to 18 U.S.C. § 2255 and 18 U.S.C. § 1595 are time-barred. The court expects that defendants will agree to any amendment(s) that will cure the alleged defects.”

Marsh Law, which is representing Elden, said in a statement it plans to file an amended complaint by the Jan. 13 deadline.

“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,” the firm’s statement said, according to NPR.