LOS ANGELES (CNS) — A judge has dismissed a lawsuit alleging sexual exploitation brought by the Los Angeles man pictured as a naked baby on the cover of the multimillion-selling Nirvana album "Nevermind," court documents obtained Tuesday show.
Spencer Elden, 30, filed suit last year, alleging that the former members of the rock trio, various record companies, art directors and others violated federal criminal child pornography laws and caused him to suffer "lifelong damages" by "trafficking" his image worldwide.
Defense attorneys moved to dismiss the lawsuit last month, arguing that Elden's complaint didn't hold up.
In his order to dismiss late Monday, U.S. District Judge Fernando Olguin noted that Elden hadn't lodged any opposition to the defendants' dismissal request. The judge gave Elden a chance to amend his complaint and refile by Jan. 13.
Elden's lawyer, Robert Lewis, told City News Service that an amended complaint would be lodged with the court in a few days.
"We are confident that Spencer will be allowed to move forward with the case," Lewis said.
According to the suit, the defendants "knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so. ... Despite this knowledge, defendants failed to take reasonable steps to protect Spencer and prevent his widespread sexual exploitation and image trafficking."
Elden's parents never signed a release authorizing the use of the photos taken of the 4-month-old baby in a Pasadena aquatic center in 1990 and Elden received no compensation, the suit alleged.
But the defendants -- including Courtney Love, executor for the estate of late Nirvana leader Kurt Cobain -- argued that Elden had seemed to enjoy being the "Nirvana baby" and even has a "Nevermind" tattoo.
"He has re-enacted the photograph in exchange for a fee, many times; he has had the album title... 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," according to the motion to dismiss filed in Los Angeles federal court.
Elden had sought a jury trial and $150,000 from each of the 17 defendants or unspecified damages to be determined.
The cover of "Nevermind" — released in 1991 by the Geffen/UMG label — depicts a naked baby swimming underwater, seemingly toward a fish hook with a dollar bill attached. It is among the best-known album covers in rock.
"To ensure the album cover would trigger a visceral sexual response from the viewer, (photographer Kirk) Weddle activated Spencer's 'gag reflex' before throwing him underwater in poses highlighting and emphasizing Spencer's exposed genitals," Elden's suit alleged.
The lawsuit contends that the cover image chosen by Cobain suggests a "sex worker grabbing for a dollar bill."
Elden alleged that the defendants "used child pornography depicting Spencer as an essential element of a record promotion scheme commonly utilized in the music industry to get attention, wherein album covers posed children in a sexually provocative manner to gain notoriety, drive sales, and garner media attention, and critical reviews."
As a result, Elden "has suffered and will continue to suffer lifelong damages," according to his complaint.
Geffen Records originally shipped 46,521 copies of "Nevermind" to retailers in hopes of eventually selling 200,000 copies. The album, a cornerstone of the grunge era, eventually sold over 30 million copies.