He has been fully aware of the facts of both the supposed 'violation' and 'injury' for decades.” Long before 2011, as Elden has pled, Elden knew about the photograph, and knew that he (and not someone else) was the baby in the photograph. It was world-famous by no later than 1992. "The 'Nevermind' cover photograph was taken in 1991. A brief examination of the photograph, or Elden's own conduct (not to mention the photograph's presence in the homes of millions of Americans who, on Elden's theory, are guilty of felony possession of child pornography) makes that clear. The motion added: " Elden's claim that the photograph on the 'Nevermind' album cover is 'child pornography' is, on its face, not serious. 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." In their motion to dismiss, NIRVANA said: " Elden has spent three decades profiting from his celebrity as the self-anointed 'Nirvana Baby'. Elden's prior suit alleged that the defendants did "knowingly benefit from participation in what they know or should know is a sex trafficking venture." In the amended lawsuit, Elden claimed that NIRVANA "intentionally commercially marketed the child pornography depicting Spencer and leveraged the lascivious nature of his image to promote the 'Nevermind' album, the band, and NIRVANA's music, while earning, at a minimum, tens of millions of dollars in the aggregate." However, the second amended complaint dropped a claim related to sex trafficking.
However, Elden had the option to refile an amended lawsuit by January 13, which he did. District Court in Central California, dismissed the case after Elden missed his December 30 deadline to file an opposition to the defendants' motion to dismiss. Olguin, who was presiding over the case at the U.S. In a December 2021 motion to dismiss, NIRVANA, as well as Kurt Cobain's widow, Courtney Love, had asked the court to throw out the lawsuit, saying Elden's claim that the photograph on the "Nevermind" cover is child pornography is "not serious" and insisting that his claim is "barred by the applicable statute of limitations." Federal child pornography law has a 10-year statute of limitations, beginning when a victim "reasonably discovers" the violation itself or the harm caused by it. The judge continued: "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." "In short, because it is undisputed that did not file his complaint within ten years after he discovered a violation… the court concludes that his claim is untimely," Olguin wrote in the eight-page ruling. Olguin's dismissal prevents Elden from filing a fourth version of his complaint. Elden also claimed the image on the cover was taken and used without his consent. District Judge Fernando Olguin in Los Angeles said Spencer Elden waited too long to claim the photo of the baby reaching for a dollar in a swimming pool violated federal child pornography statutes and arguing child sexual exploitation. According to Rolling Stone, a judge has dismissed the third version of the lawsuit against NIRVANA filed by the man who claims he was the baby featured on the cover of the band's "Nevermind" album.