By Jonathan Stempel
(Reuters) – Nirvana has urged a U.S. judge to dismiss for good the lawsuit by the man claiming that his depiction as a naked four-month-old baby on its 1991 album “Nevermind” was child pornography.
In a filing in Los Angeles federal court, the band said Spencer Elden waited too long to claim it sexually exploited him, dooming the third and latest version of his complaint.
“While there is no serious question that the photograph is not ‘child pornography,’ Elden’s case is long barred by the statute of limitations,” the band’s lawyers wrote. “For Elden, this is strike three. This case must end.”
A lawyer for Elden did not immediately respond on Tuesday to requests for comment.
The “Nevermind” album cover depicted Elden swimming naked toward a dollar bill pierced with a fish hook.
Elden has said the photo caused him “lifelong damages” while letting Nirvana reap tens of millions of dollars at his expense.
“Nevermind,” which features the song “Smells Like Teen Spirit,” had album sales topping 30 million.
Elden’s latest complaint included details he hoped would show he filed the August 2021 lawsuit within the federal 10-year statute of limitations.
But Nirvana’s lawyers said Elden did not identify any “new victimization … which he reasonably discovered for the first time after August 2011 to re-start the clock.”
They quoted from a 2003 interview with Rolling Stone magazine in which Elden, then 12, said: “Every five years or so, somebody’s gonna call me up and ask me about ‘Nevermind’ … and I’m probably gonna get some money from it.”
The defendants include Nirvana band members Dave Grohl and Krist Novoselic, late lead singer Kurt Cobain’s widow Courtney Love, several record labels and the photographer, Kirk Weddle.
A hearing before U.S. District Judge Fernando Olguin is scheduled for Feb. 24.
(Reporting by Jonathan Stempel in New York; Editing by Bill Berkrot)
