A third “child pornography” lawsuit brought against Nirvana by Spencer Elden, who was photographed naked at four months old for the album cover of 1991’s Nevermind, has been dismissed by a US District Judge in Los Angeles. The ruling will prevent Elden from filing a fourth lawsuit, leading lawyers representing Nirvana to claim that the suit has come to a “final conclusion,” though Elden has suggested he will appeal.
Elden had sought damages from surviving Nirvana members Dave Grohl and Krist Novoselic, as well as the estate of Kurt Cobain, photographer Kirk Weddle, and multiple record labels. As Reuters reports, Judge Fernando Olguin wrote that Elden’s lawsuit was invalid from the beginning because the statute of limitations had expired after ten years, and “plaintiff fails to allege that he knew of a violation that occurred while he was a minor or an injury that forms the basis of the claim within ten years of filing this action.”
Elden had tried to get around the statute of limitations by claiming that the existence of the album cover — which shows him as a four-month-old baby naked and underwater, gazing at a dollar bill on a fishhook — continued to cause him emotional distress and “loss of enjoyment of life.” But Judge Olguin rejected this argument, saying it would have allowed Elden to continue suing Nirvana indefinitely.
“In short, because it is undisputed that [Elden] did not file his complaint within ten years after he discovered a violation… the court concludes that his claim is untimely,” Olguin ruled, while also noting that the same problem plagued previous version of the lawsuit. “Because plaintiff had an opportunity to address the deficiencies in his complaint regarding the statute of limitations, the court is persuaded that it would be futile to afford plaintiff a fourth opportunity to file an amended complaint.”
But in a statement to Rolling Stone, Elden’s lawyer Margaret Mabie vowed to “appeal this ruling. This ruling’s interpretation of the statute of limitations… contravenes over fifteen years of well-settled precedent and the legislature’s intended purpose of the law. Under this reading of the law, child pornography remedies vaporize once the victim in the contraband image turns 28 years old. Under this logic, any child pornography producer… could simply wait out the clock and then re-distribute abusive material with impunity.”
Mabie added, “The Nevermind cover was created at time when Spencer was a baby and it is impossible for him to age out of this victimization while his image remains in distribution.”
Bert Deixler, an attorney representing Nirvana, said, “We are pleased that this meritless case has been brought to a speedy final conclusion.”