Spencer Elden, the man suing legendary grunge rock band Nirvana for alleged sexual exploitation after appearing as a nude infant on the group's Nevermind album cover, has just 10 days to refile his lawsuit after a judge dismissed the initial case on Monday.
California Judge Fernando M. Olguin tossed out the case on January 3 after Elden failed to respond to Nirvana's motion to dismiss in December. Now, Elden has until January 13 to issue an amended complaint or the suit will be finished, according to Rolling Stone.
Elden, a now 30-year-old man, initially filed a lawsuit in August claiming that an image of him as a naked four-month-old baby on Nirvana's 1991 album cover violated child pornography laws and caused him to suffer "lifelong damages." The lawsuit concerns one of the most famous album covers in music history, which shows Elden suspended in a pool of water while reaching out towards money on a fishhook.
In his lawsuit, Elden alleged that his "identity and legal name are forever tied to the commercial sexual exploitation he experienced as a minor," and that the band made millions of dollars off of his image while he received no compensation. The suit sought either $150,000 from each of the 17 defendants – which includes the former members of Nirvana, as well as various record companies and art directors – or unspecified damages determined at trial.
In response, lawyers for Nirvana fired back in December, stating that the case should be dismissed because Elden spent decades embracing his fame as the album cover model. The lawyers noted that Elden frequently re-enacted the photograph in exchange for money, had the album title tattooed across his chest, sold autographed copies of the album online, and even "used the connection to try to pick up women."
Furthermore, the lawyers argued that the image did not constitute either child pornography or sex trafficking, and that Elden's allegations of the two went beyond a 10-year statute of limitations.
"Elden's claim that the photograph on the Nevermind album cover is 'child pornography' is, on its face, not serious," the lawyers said. "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."
According to the Monday ruling, Elden had until December 30 to respond to Nirvana's motion to dismiss, but failed to meet that deadline. If Elden now chooses to refile within the next 10 days, Nirvana's estate will have until January 27 to respond, Spin Magazine reported.
"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," Judge Olguin wrote on Monday.
As of Tuesday morning, it is unclear whether or not Elden will choose to carry on with the case.
Uncommon Knowledge
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