NEW YORK, NY.-
A federal judge has dismissed a lawsuit filed by a man who said he had been sexually exploited by the grunge rock group Nirvana when the band used a photo of him as a baby, naked and drifting in a pool, for the cover of the groups breakthrough album.
In his complaint, the man, Spencer Elden, 30, accused Nirvana of engaging in child pornography when it used a photo of him as the cover art of Nevermind, the Seattle bands 1991 album that helped define Generation X and rocketed the group to international fame.
The lawsuit was dismissed after a judge in the U.S. District Court for the Central District of California said that Eldens lawyers missed a deadline to respond to a motion for dismissal by the lawyers for Nirvana.
Judge Fernando M. Olguin said that Eldens lawyers had until Jan. 13 to file a second amended complaint to address the alleged defects in the defendants motion to dismiss.
Robert Y. Lewis, one of Eldens lawyers, said they would file the complaint well before the deadline. He said the missed deadline was a result of confusion over how much time they had to respond to the motion for dismissal.
We feel confident that our amended complaint will survive an expected motion to dismiss, Lewis said.
The lawsuit was filed in August against the estate of Kurt Cobain; Cobains former bandmates, David Grohl and Krist Novoselic; and Cobains widow, Courtney Love, among other parties. Their lawyers did not immediately respond to messages for comment Tuesday.
In their motion to dismiss, the lawyers for Nirvana said that Eldens lawsuit failed to meet the statute of limitations to file a complaint citing a violation of federal criminal child pornography statutes. But they also denied that the picture, one of the most famous photographs of all time, was an example of child pornography.
Eldens claim that the photograph on the Nevermind album cover is child pornography is, on its face, not serious, they wrote. A brief examination of the photograph, or Eldens own conduct (not to mention the photographs presence in the homes of millions of Americans who, on Eldens theory, are guilty of felony possession of child pornography), makes that clear.
Instead, they said, the photograph evokes themes of greed, innocence and the motif of the cherub in Western art.
Elden was 4 months old when he was photographed in 1991 by a family friend, Kirk Weddle, at the Rose Bowl Aquatics Center in Pasadena, California.
The photo of Elden was picked from among dozens of pictures of babies Weddle photographed for the album cover, which Cobain, the bands frontman, envisioned showing a baby underwater.
Weddle paid Eldens parents $200 for the picture, which was later altered to show the baby chasing a dollar, dangling from a fishhook.
In the decades that followed, Elden appeared to celebrate his part in the classic cover, re-creating the moment for the albums 10th, 17th, 20th and 25th anniversaries, though not naked.
But in the lawsuit, Elden said he had suffered permanent harm because of his association with the album, including emotional distress and a lifelong loss of income-earning capacity.
The lawsuit did not provide details about the losses but said that Nirvana, the producers of the album and others had all profited from the albums sales at the expense of Eldens privacy.
The lawyers for Nirvana said that Elden used his fame from the photo to pick up women and benefited financially from the album cover. They described the various times he reenacted the photograph for a fee, his public appearances parodying the cover, and the copies of the album that he autographed, which were then sold on eBay.
They wrote: Elden has spent three decades profiting from his celebrity as the self-anointed Nirvana Baby.
This article originally appeared in The New York Times