Lawyers representing Nirvana have filed to dismiss Spencer Elden’s latest motion to bring the ‘Nevermind’ lawsuit back to court.
Elden took legal action against the band over the image of him as an infant, in which he appears naked and swimming after a dollar bill in a swimming pool. He claimed that he has suffered “lifelong damages” from the photo and that it was “commercial child sexual exploitation” and child pornography.
After the case was dismissed, Elden filed a second, amended complaint and alleged that Nirvana, Cobain’s estate, Kurt Weddle (who took the photograph used on the ‘Nevermind’ cover) and multiple record labels “intentionally commercially marketed the child pornography depicting Spencer and leveraged the lascivious nature of his image to promote the Nevermind album, the band, and Nirvana’s music, while earning, at a minimum, tens of millions of dollars in the aggregate.”
“For Elden this is strike three, this case must end,” the motion states, adding that Nirvana is asking the court “for an order dismissing this action, with prejudice” and, once again, “on the ground that it is barred by the statute of limitations” and “no amendment is possible to salvage the claim.”
In a statement issued in December in response to the original complaint, representatives for Nirvana refuted the claims, saying the lawsuit was “not serious” and was beyond the statute of limitations.
They went on to cite occasions where Elden had seemingly embraced being featured on the album art, claiming that he’d “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’”.
“He has recreated the photograph for a fee many times; the title of the album Nevermind has been tattooed on his chest; has appeared on a talk show with a flesh-colored jumpsuit who parodies himself; has autographed copies of the album cover for sale on eBay, and he has used the connection to try to pick up women,” the statement read. “There is no doubt that Elden’s claims will fail on the merits.”
A hearing is scheduled to take place on February 24 in Los Angeles.