WASHINGTON — Nirvana has won a lawsuit brought by Spencer Elden, the naked baby who graced the cover of the band's 1991 album "Nevermind," after a federal judge dismissed it for a final time.
On Friday, U.S. District Judge Fernando Olguin dismissed the lawsuit once again in an eight-page ruling stating that Elden had waited too long to file the motion, based on a 10-year statute of limitations, according to Rolling Stone.
The lawsuit alleges the iconic cover of four-month old Elden swimming naked was child pornography and child sexual exploitation. It had been dismissed before, but Olguin allowed for Elden to refile the motion earlier this year.
“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," Olguin said in the ruling.
The lawsuit, first filed in August 2021 in federal court in California, said that Elden, had suffered “lifelong damages” as the band and others profited from the ubiquitous image of him naked underwater appearing to swim after a dollar bill on a fish hook.
“We are pleased that this meritless case has been brought to a speedy final conclusion,” a lawyer for Nirvana told Reuters.
Elden's lawyers said they intend to appeal the ruling, according to Rolling Stone.
“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,” Elden's lawyer told Rolling Stone.
In December, a motion to dismiss, filed by Nirvana’s attorneys, argued that the suit was filed well past the 10-year statute of limitations of one of the laws used as a cause of action, and that another law it cites wasn’t enacted until 2003 and was not retroactive.
The December motion said the lawsuit is “on its face, not serious,” and Elden’s conduct reflects that.
“Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby,‘” the document said.
Elden had taken part in photoshoots over the years, recreating the image.