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Nevermind artwork lawsuit dismissed – but likely to be re-filed this month

By | Published on Monday 10 January 2022

Nirvana - Nevermind (Censored)

A US judge last week dismissed the Nirvana baby lawsuit, although because of a missed deadline rather than any judicial opinion on the merits of the litigation itself. And Spencer Elden – the man who appeared, as a baby, on the cover of Nirvana’s ‘Nevermind’ album back in 1991 – can still submit an amended complaint dealing with issues already raised by the defendants in the case.

Elden sued Nirvana, their label and other people involved in creating the ‘Nevermind’ artwork back in August. Claiming that Elden’s guardians did not know how the nude baby photo would be used when it was originally taken, the lawsuit said that the defendants “knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so”.

The defendants in the case formally responded last month, claiming that Elden’s lawsuit was without merit. Among other things, the band et al argued that Elden himself had – for years – been blasé or actively positive about his baby photo appearing on the ‘Nevermind’ album artwork. Indeed, their legal filing stated, he “has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’”.

Aside from questioning the legal arguments in the lawsuit, the defendants also argued that Elden had left it too late to go legal because, with the specific laws they are accused of violating, there is a ten year statute of limitations. That doesn’t mean Elden would have had to sue within ten years of the photograph being taken, but within ten years of becoming aware of the alleged pornographic use of the image or when he turned eighteen. Elden’s eighteenth birthday was in 2009.

With all that in mind, the defendants asked the court to dismiss the lawsuit. The motion for dismissal was filed on 22 Dec and Team Elden had until 30 Dec to respond. No response was forthcoming, meaning that the motion for dismissal was granted and a scheduled hearing on 20 Jan to discuss the defendants’ motion has been called off. However, that doesn’t stop Elden from submitting an amended complaint.

In last week’s ruling, the judge noted that the planned 20 Jan hearing date “required plaintiff to file his opposition to the motion no later than 30 Dec 2021. Plaintiff did not file any opposition to defendants’ motion. Accordingly, the court will vacate the hearing date and grant defendants’ motion”.

However, the judge added that Elden was being granted “one last opportunity to amend his complaint. In preparing the second amended complaint, plaintiff shall carefully evaluate the contentions set forth in defendants’ motion, including defendants’ assertions that plaintiff’s claims … are time-barred”.

Elden now has until 13 Jan to file his amended complaint. A legal rep confirmed to AFP last week that such a document would indeed be filed, adding that “we are confident that Spencer will be allowed to move forward with his case”.