Spencer Elden sued Nirvana, record companies, Courtney Love and others last summer, claiming that the album cover violated federal criminal child pornography laws and was “commercial sexual exploitation.”
Elden’s parents never signed a release authorizing the use of the photos taken of the four-month-old baby in a Pasadena aquatic center in 1990 and Elden received no compensation, his lawyers alleged.
U.S. District Judge Fernando M. Olguin on Monday granted the defendants motion to dismiss the lawsuit. But the judge also said that Elden would get “one last opportunity” to amend his complaint by Jan. 13.
In their motion to dismiss, the defendants attorneys argued that Elden’s claims were time-barred by the statute of limitations. But they also contended that they would win the case on the merits, arguing that Elden “has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.'”
“Elden’s claim that the photograph on the Nevermind album cover is ‘child pornography’ is, on its face, not serious,” their attorneys wrote in their brief. “A brief examination of the photograph, or Elden’s own conduct (not to mention the photograph’s presence in the homes of millions of Americans who, on Elden’s theory, are guilty of felony possession of child pornography) makes that clear.”
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