Photo: FilmMagic, Inc
Over the weekend, Judge Fernando M. Olguin made a ruling on Spencer Elden's case against Nirvana in regards to his photo on the album's cover being considered child pornography. Judge Olguin ruled that the case was filed well past the statute of limitations (10 years) and dismissed the case with prejudice.
“In short, because it is undisputed that [Elden] did not file his complaint within ten years after he discovered a violation… the court concludes that his claim is untimely,” District Judge Fernando Olguin wrote (via Rolling Stone). “Because plaintiff had an opportunity to address the deficiencies in his complaint regarding the statute of limitations, the court is persuaded that it would be futile to afford plaintiff a fourth opportunity to file an amended complaint.”
Bert Deixler, one of Nirvana's attorneys, made a statement about the decision, telling Reuters, “We are pleased that this meritless case has been brought to a speedy final conclusion.”
Though Deixler may see it as the "final conclusion," Elden, better known as the Nevermind baby, does not. He has been barred from re-filing another amended lawsuit; however, "intends to appeal" the decision.
“Under this reading of the law, child pornography remedies vaporize once the victim in the contraband image turns 28 years old. Under this logic, any child pornography producer […] could simply wait out the clock and then re-distribute abusive material with impunity," Elden's lawyer Margaret Mabie said in a statement. “The ‘Nevermind’ cover was created at time when Spencer was a baby and it is impossible for him to age out of this victimization while his image remains in distribution.”
Elden first sued the surviving members of the band, as well as Kurt Cobain's estate, last August, claiming the use of his naked photo on the iconic 1991 album cover was sexual exploitation. He argued that he was unable to give consent to its use (he was four months old at the time), and his legal guardians didn't either, thus the image was child pornography.