A federal judge has dismissed a lawsuit against rock band Nirvana over their iconic 1991 Nevermind album cover.
The cover art depicts a photograph of Spencer Elden, now 30, swimming in a Californian pool at four months old.
Elden filed a lawsuit against the band back in August last year, alleging child exploitation.
Judge Fernando M. Olguin with the U.S. District Court for the Central District of California dismissed the case on Monday local time, after Elden missed a December 30th deadline to file an opposition to the defendants’ request that the suit be thrown out.
They argued that the suit was “not serious”.
As SPIN reports, Elden’s team have until next Thursday to refile a second complaint, as the court will “grant defendants’ Motion and give plaintiff one last opportunity to amend his complaint.”
If they do make the deadline, Nirvana’s estate will have until January 27th to respond.
Love Classic Rock?
Get the latest Classic Rock news, features, updates and giveaways straight to your inbox Learn more
If they miss the deadline, they won’t have another opportunity to refile.
The initial suit filed by Elden claimed he had suffered “lifelong damages” as the band and others had profited from the image of him naked, appearing to swim after a dollar bill on a fish hook.
Elden filed the suit one month before Nevermind‘s 30th anniversary.
In the motion to dismiss, filed on December 22nd, Nirvana’s attorneys argued that the suit was well past the 10-year statute of limitations of one of the laws used as a cause of action.
Another law it cited was not enacted until 2003, and was not retroactive.
“Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby,'” the document said.
“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.”
Elden was seeking at least $150,000 from each of more than a dozen defendants, including the band members, the record labels involved in the release and re-release of Nevermind, and cover photographer Kirk Weddle.
