A federal judge has tossed a lawsuit brought by a Los Angeles man pictured as a naked baby over 30 years ago on the cover of the groundbreaking Nirvana album “Nevermind'' because the suit was not filed in a timely manner, according to court papers.
Spencer Elden, 31, alleged that the now-defunct group, various record companies and art directors caused him to suffer “lifelong damages'' by “trafficking'' his image worldwide. The Woodland Hills man filed an amended complaint in January against the grunge-rock trio under a federal statute which allows victims of child pornography to recover damages for violations of child porn laws.
U.S. District Judge Fernando Olguin permanently dismissed the suit Friday after finding that because Elden had learned about the album cover more than 10 years ago, he had waited too long to file his lawsuit -- making his claims untimely.
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The plaintiff filed a notice of intent Monday to appeal the judge's decision, according to City News Service. Elden's lawyers filed the notice of appeal with the U.S. 9th Circuit Court of Appeals.
An email message sent to Elden's attorney for comment was not immediately answered during Labor Day weekend.
According to the lawsuit, filed in Los Angeles federal court, 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 defendants including Courtney Love, executor for the estate of late Nirvana leader Kurt Cobain argued in their court papers that Elden 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 a defense motion to dismiss.
Elden 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. 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.
Cobain was found dead at his home in Seattle at the age of 27 on April 8, 1994. Police concluded he had died from a self-inflicted shotgun wound to the head.