A Judge in California has dismissed a lawsuit filed by Spencer Elden against Nirvana, which had claimed that Nevermind's cover art was child pornography.
Last September, Elden, who appeared on Nirvana's 1991 breakthrough album Nevermind's cover as a naked baby, filed a lawsuit against the band over child porn allegations.
Nevermind's cover featured Elden, then an infant, swimming underwater while undressed and shows him trying grasp a one dollar bill that is floating in front of him on a fishing line.
In the complaint filed in a federal court in California, Elden's attorneys said the image was pornographic and that he has suffered "lifelong damages" as a result of his involvement.
Elden was seeking $150,000 in damages from each of the defendants, plus legal costs, and alleges the defendants "knowingly produced, possessed, and advertised commercial child pornography."
However, last month, Nirvana had filed to dismiss the lawsuit.
"Elden's claims fail, at the outset, because they are time-barred. Elden asserts two causes of action, one under the federal statute that permits victims of certain federal child pornography criminal offenses to sue for civil damages; and another under the federal statute that permits victims of certain trafficking crimes to sue for civil damages. Neither cause of action is timely," Nirvana's lawyers argued.
The lawyers also wrote that "The Nevermind cover photograph was taken in 1991. It was world-famous by no later than 1992. Long before 2011, as Elden has pled, Elden knew about the photograph and knew that he (and not someone else) was the baby in the photograph. He has been fully aware of the facts of both the supposed 'violation' and 'injury' for decades."
Elden's team had until December 30 to respond to Nirvana's motion to dismiss but missed the deadline.
As a result, Judge Fernando Olguin dismissed the case "with leave to amend," which allows Elden to refile the case with appropriate changes by January 13. If he misses the deadline, the case will be dismissed without prejudice and closed.
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