The lawsuit brought against Nirvana and their camp by the now-grown baby from the iconic cover of the band’s 1991 album, Nevermind, has been dismissed.
Spencer Elden, age 30, filed a suit in August claiming that neither he nor his legal guardians consented to the photo, which was taken when he was four-months-old; that the band failed to make good on a promise to cover his penis with a sticker; that he has been sexually exploited; and that he has suffered lifelong damages as a result of the image. He sought $150,000, at minimum, from each of the defendants named in his suit, which would total a minimum of $2,550,000. Additionally, Elden sought legal fees and an injunction, which would prevent his penis from appearing on all future pressings of the album’s cover (although Elden’s opportunity to stop the photo from gracing the packaging of the 30th anniversary super-duper-extra-special deluxe reissue has passed — it was released on November 12, 2021).
An amendment to the suit filed in November dropped former Nirvana drummer Chad Channing (who left Nirvana in 1990 over a year before Nevermind‘s release), Warner Music, and Heather Parry and Guy Oseary (former managers of Cobain’s estate) as defendants. But the amendment also presented additional allegations and context intended to prove that the band always intended the image to be sexual in nature.
In 2007, Elden claimed that his parents, Renata and Rick Elden, were paid just $200 for the photo. Still, he has, in the past, embraced his role in rock history, getting “Nevermind” tattoed across his chest and participating in a recreation of the album cover photo shoot in 2016.
The defendants — UMG Recordings, Inc., Nirvana L.L.C., Kurt Cobain, Courtney Love (as executor of the Estate of Kurt Cobain), Nirvana members Krist Novoselic, Dave Grohl, and the album’s photographer, Kirk Weddle — filed a motion to dismiss the lawsuit on December 22 in a California court. A passage in the motion reads:
“The baby in the photograph is now a thirty-year-old man, the plaintiff, Spencer Elden. Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.’ He has re-enacted the photograph in exchange for a fee, many times; he has 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.”
The parties also argued that the photo does not fall under the umbrella of child pornography because it is not “coupled with other circumstances that make the visual depiction lascivious or sexually provocative.” Instead the motion argues that the photograph “evokes themes of greed, innocence, and the motif of the cherub in Western art.”
Now Rolling Stone reports that Elden’s legal team failed to respond to the motion to dismiss by the December 30 deadline. Consequently, on Monday, January 3, Judge Fernando M. Olguin did, indeed, dismiss the case.
All is not lost for Elden, however: the ruling states that he can still file a second amended complaint by next Thursday, January 13. Should he fail to do so, “the suit will be dismissed without prejudice (which means another suit could be filed in the future),” according to the Rolling Stone report.
Marsh Law, the firm representing Elden, tells the magazine:
“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.”
Read more here.