LOS ANGELES (CN) — The man depicted on Nirvana's monumental 1991 album "Nevermind" when he was four months old and with his penis in full view waited too long to sue the former band members and the record label for child pornography, a federal judge said.
U.S. District Judge Fernando Olguin on Friday dismissed the claims by Spencer Elden against the estate of Kurt Cobain, Universal Music Group and the two other former members of the Seattle grunge band. The judge wasn't persuaded by Elden's arguments that a 10-year statute of limitations for civil claims didn't apply to the harm he claims to still suffer from his depiction on album cover.
Contrary to Elden's contentions, the judge said, the law under which he sued for damages applies to harm he may have suffered as a minor, not as a grown man. Since any further attempt to revise the allegations would be futile, the judge dismissed the case with prejudice.
Elden's attorneys said in a statement that they disagreed with the judge's reading of the law and that they would appeal the ruling.
In an amended complaint filed in January in Los Angeles, Elden had focused on the damages he endured during the past 10 years because the judge, in allowing him to revamp his claims, had instructed him to address the record company's argument that the statute of limitations had run out.
"This unprecedented album cover is perhaps the first and only time a child’s full-frontal nudity has been used to sell a product," Elden's attorneys said in a statement at the time. "Spencer's image constitutes child pornography and each of the Nirvana defendants robbed our client of his dignity and privacy."
Even though the album cover is 30 years old, the former band members and the record company had continued to promote and distribute what Elden called child pornography during the last 10 years. For example, this past September the album with Elden's genitals on the cover was rereleased to celebrate the 30th anniversary of the release of "Nevermind," according to the amended complaint.
As a result, Elden said, he has suffered physical, psychological, financial and reputational damage during the past 10 years. He sought at a minimum $150,000 in statutory damages from each of the named defendants as well as attorneys fees.
Universal Music and the former band members rebuked the claim the album cover amounts to child pornography, saying that under the law any nudity must be coupled with "other circumstances that make the visual depiction lascivious or sexually provocative" to fall within the parameters of the child pornography statute.
In their request to dismiss the lawsuit, the defendants said Elden had spent 30 years profiting from his celebrity as "the self-anointed 'Nirvana Baby.'"
"He has reenacted the photograph in exchange for a fee, many times; he has had the album title 'Nevermind' 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," the defendants said in their motion to dismiss.Follow @edpettersson
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