US 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
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.