A judge has dismissed the lawsuit filed against the surviving members of Nirvana over the cover image of their iconic album “Nevermind.”
Earlier this year, Spencer Elden – the baby pictured naked on the front of the album – sued a number of individuals and companies associated with the record including Nirvana band members Dave Grohl and Krist Novoselic as well as Kurt Cobain’s widow Courtney Love, who is the executor of Cobain’s estate. Elden’s lawsuit claimed the image on the cover was taken and used without his consent and the nudity amounts to an image of child abuse.
Two weeks ago the defendants’ attornies sought a dismissal of Elden’s lawsuit, stating Elden had “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’” and the suit had no merit.
On Monday evening, Judge Fernando M. Olguin, who was presiding over the case at the U.S. District Court in Central California, dismissed the case according to reports.
The case was dismissed because Elden’s representatives missed their deadline to file an opposition to the motion of dismissal. The deadline was last Thursday (Dec. 30).
However, Judge Olguin’s dismissal was made “with leave to amend,” according to Spin. Therefore although the lawsuit has been dismissed, Elden has been given a second chance to refile a complaint against the defendants. If Elden misses the new deadline of Jan. 13. the suit will be dismissed for good.
If Elden does refile by Jan. 13, the defendants’ lawyers will have a further two weeks to file a reply to the new suit.
“Failure to timely file a Second Amended Complaint shall result in this action being dismissed without prejudice for failure to prosecute and/or failure to comply with a court order,” the ruling stated, according to Spin.
As well as Grohl, Novoselic and Love, defendants to Elden’s lawsuit include music managers Guy Oseary and Heather Parry, who manage Cobain’s estate; photographer Kirk Weddle; art director Robert Fisher; Nirvana’s original dramma Chad Channing (who would come to be replaced by Grohl long before “Nevermind” was conceived of and released) and a variety of record companies (including some that are now defunct) that handled the album in some capacity since its release in 1991.