A judge dismissed a lawsuit against the rock band Nirvana over its iconic 1991 "Nevermind" album cover, which depicts a baby swimming naked in a pool.
Spencer Elden, 30, who was photographed in a Pasadena, California, swimming pool at the age of 4 months, filed the federal lawsuit in August, alleging child pornography. The photo was digitally altered to add a dollar bill on a fishhook to make it look as though he was trying to grab it.
U.S. District Judge Fernando M. Olguin dismissed the lawsuit Monday after Elden missed the deadline of last Thursday to file opposition documents to the defendants’ request to toss the suit out.
Online court documents say Elden can file a second amended complaint "attempting to cure, to the extent he believes is warranted by existing law, the alleged defects outlined in defendants’ motion."
He has until Jan. 13 to file or the lawsuit will be dismissed without prejudice, the court documents state.
Elden's attorney alleged in the original complaint that including money in the photo made his client appear "like a sex worker" grabbing "for a dollar bill that is positioned dangling from a fishhook in front of his nude body with his penis explicitly displayed."
The lawyer, Robert Y. Lewis, accused Nirvana of trying to garner attention with the use of "an explicit image," according to the suit.
Elden was seeking at least $150,000 from each of the defendants: surviving band members Dave Grohl and Krist Novoselic; Courtney Love, Kurt Cobain’s widow and the executor of his estate; Guy Oseary and Heather Parry, the managers of Cobain’s estate; photographer Kirk Weddle; art director Robert Fisher; and a number of existing or defunct record companies that released or distributed the album in the last three decades.
Original Nirvana drummer Chad Channing is also named as a defendant, even though Grohl had replaced him in 1990, before the album was recorded or the cover photography was shot.
Attorneys for the defendants declined to comment on Tuesday. Lewis said Elden will file a second amended complaint "very soon."
"We are confident that Spencer will be allowed to move forward with the case," he said in a statement.
The idea for the cover image came when Cobain saw a documentary about underwater births and “thought the image would make a cool cover,” Fisher told Entertainment Weekly. “That vision was a bit too graphic, so we went with the swimming baby instead.”
Weddle, who was friends with Elden's father, Rick, took the pictures in an Olympic-size pool in Pasadena. The family was paid about $200, Rick Elden told NPR in 2008.
Weddle “calls us up and was like, ‘Hey Rick, wanna make 200 bucks and throw your kid in the drink?,’” he said. “I was like, ‘What’s up?’ And he’s like, ‘Well, I’m shooting kids all this week, why don’t you meet me at the Rose Bowl, throw your kid in the drink?’ And we just had a big party at the pool, and no one had any idea what was going on!”
The lawsuit says neither Elden nor his guardians signed a release authorizing the use of the image.
Elden has repeatedly re-created the pose as a teenager and an adult, while wearing swim trunks, to celebrate the album's 10th, 17th, 20th and 25th anniversaries. However, in most of the interviews accompanying the photo shoots, he expressed mixed feelings about being famous because of the cover.