Attorneys for a man pictured as a naked baby on the cover of the multimillion-selling Nirvana album “Nevermind” say they plan to file an amended complaint after a Los Angeles judge dismissed his lawsuit.
Spencer Elden, 30, of Los Angeles, sued last year, alleging the former members of the grunge-rock trio, various record companies, art directors and others violated federal criminal child pornography laws and caused him to suffer lifelong damages by “trafficking'' his image worldwide. Nirvana and other defendants moved to dismiss the suit last month, arguing that Elden's complaint didn't hold up.
In his order to dismiss late Monday, U.S. District Judge Fernando M. Olguin noted that Elden hadn't lodged any opposition to the defendant's dismissal request. The judge gave Elden a chance to amend his complaint and refile by Jan. 13.
In a statement, Elden's attorneys said a second amended complaint will be filed “very soon.”
“We are confident that Spencer will be allowed to move forward with the case,” the statement said.
According to the lawsuit, the 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, lawyers for the plaintiff alleged.
But the defendants -- including Courtney Love, executor for the estate of late Nirvana singer-songwriter Kurt Cobain -- argued that Elden had 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 the defense motion to dismiss filed in Los Angeles federal court.
Elden had sought a jury trial and $150,000 from each of the 17 defendants or unspecified damages to be determined at trial.
The cover of "Nevermind'' -- released in 1991 by the Geffen/UMG label -- depicts a naked baby swimming underwater, seemingly towards 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, is often noted for helping bring punk to the mainstream.
NBCLA's Jonathan Lloyd contributed to this report.