Judge again dismisses Nirvana baby album cover lawsuit

NEW YORK

A U.S. federal judge has again dismissed the child pornography lawsuit filed by the man who as a baby was photographed naked for the cover of Nirvana’s 1991 “Nevermind” album.

Spencer Elden was seeking $150,000 in damages from defendants including the surviving former members of the band, Dave Grohl and Krist Novoselic, as well as the estate of the late lead singer Kurt Cobain, and the photographer, Kirk Weddle.

In dismissing the suit on Sept. 2, Judge Fernando Olguin said the plaintiff failed “to allege that he knew of a violation that occurred while he was a minor or an injury that forms the basis of the claim within 10 years of filing this action,” as required by the statute under which he sued.

“Because plaintiff had an opportunity to address the deficiencies in his complaint regarding the statute of limitations, the court is persuaded that it would be futile to afford plaintiff a fourth opportunity to file an amended complaint,” the judge wrote.

Olguin had previously dismissed the case in January 2022 after Elden’s attorneys missed a deadline, but they refiled it later that month.

Elden’s attorneys said Saturday he will appeal the ruling.

“The ’Nevermind’ cover was created at time when Spencer was a baby and it is impossible for him to age out of this victimization while his image remains in distribution,” a statement from Marsh Law Firm said.

In 1991, when he was four months old, Elden was photographed naked in a swimming pool reaching for a dollar bill on a fish hook, an image that became one of the most iconic album covers of all time.

The album went on to sell 30 million copies, with songs such as “Smells Like Teen Spirit” becoming American pop cultural touchstones.

But neither Elden 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,” the lawsuit said.

The suit said Elden had suffered “extreme and permanent emotional distress,” as well as “lifelong loss of income earning capacity.”

Weddle, the photographer, was a friend of Elden’s father, the family told NPR in 2008.

They held a pool party during which Elden was photographed underwater for the then-unknown band. Elden’s parents were paid $200 for the original shoot.