By Jonathan Stempel
(Reuters) – A federal judge in Los Angeles has dismissed a lawsuit by a man who said the grunge rock group Nirvana sexually exploited him by putting a photo of him as a naked, four-month-old baby on the cover of its classic 1991 album “Nevermind.”
U.S. District Judge Fernando Olguin on Monday dismissed the lawsuit after the plaintiff Spencer Elden missed a deadline to respond to the defendants’ motion to dismiss the case.
Olguin gave Elden until Jan. 13 to file an amended complaint to address alleged problems the defendants identified in his case.
A lawyer for Elden did not immediately respond to requests for comment on Tuesday.
In his lawsuit filed last August, Elden, by then aged 30, claimed he had suffered “lifelong damages” from the album cover, which depicted him swimming naked toward a dollar bill pierced with a fish hook.
Elden sought at least $150,000 in damages from each of several defendants, including Universal Music Group, Nirvana drummer and Foo Fighters frontman Dave Grohl, Nirvana bassist Krist Novoselic, and Courtney Love, the widow of Nirvana lead singer Kurt Cobain who died in 1994.
“Nevermind” is one of the best-selling albums ever, with sales topping 30 million worldwide. It features Nirvana’s signature song “Smells Like Teen Spirit.”
In seeking a dismissal of Elden’s case, the defendants said his claim that the photo amounted to child pornography was “on its face, not serious” under the circumstances.
They cited a 1994 court ruling which said no one could seriously believe a painting by French Impressionist Pierre-Auguste Renoir of a nude woman, or an innocuous family photo of a naked child in a bathtub, violated child pornography laws.
The defendants also said Elden could not claim to be a victim after spending three decades “profiting from his celebrity as the self-anointed ‘Nirvana Baby.'”
Elden has posed as an adult to recreate the photo, including with “Nevermind” tattooed on his chest.
(Reporting by Jonathan Stempel in New York; Editing by Karishma Singh)
