Nirvana says the man pictured as the naked baby on its Nevermind album cover has milked his child pornography claims against the band long enough.
In a new filing in federal court in Los Angeles, lawyers for the group say Spencer Elden’s second amended complaint filed Jan. 12 should be dismissed with prejudice, meaning he should be sent packing without a chance to try again.
“For Elden, this is strike three. This case must end,” the lawyers wrote in their motion obtained by Rolling Stone.
In his initial lawsuit filed last August, Elden claimed the band — along with co-defendants including Universal Music Group, the David Geffen Company, Courtney Love as executor of Kurt Cobain’s estate and photographer Kirk Weddle — intentionally “leveraged the shocking nature” of his image as a naked 4-month-old baby swimming toward a dollar bill on a fishhook to make millions of dollars “at his expense.”
After a judge dismissed the case Jan. 3, lawyers for Elden filed a second amended complaint a week later that dropped a claim related to sex trafficking while adding more language to address alleged conduct within the last 10 years that would restart the 10-year statute of limitations on the child pornography claims.
For example, Elden and his legal team said the band celebrated Nevermind‘s 30th anniversary by re-releasing the album last September while continuing “to feature a lascivious exhibition of Spencer’s genitals on the cover.”
In their new dismissal motion, Nirvana’s lawyers said Elden’s second amended complaint failed to “identify any new victimization” that Elden “reasonably discovered for the first time after August 2011.”
“The time has run,” the new filing states. “Elden’s decision to not sue these defendants for the past 30 years, despite his decades-long knowledge of their same and unvaried conduct, is dispositive of his claim. It is as simple as that.”
Elden’s lawyers did not immediately respond to Rolling Stone‘s request for comment on the dismissal motion Monday.
In their prior Dec. 22 motion to dismiss the first amended complaint, Nirvana’s lawyers argued that Elden’s willingness to associate himself with the Nevermind cover over the years — such as selling autographed copies of the cover and at one point recreating the photograph as an adult for a paying gig — proved he didn’t suffer any damages.
10cc drummer Paul Burgess has announced that he is leaving the band because the demands of touring have become too much for him.
The 75-year-old musician, who also spent time performing with Jethro Tull, Camel, Magna Carta, and The Icicle Works, has chosen to walk away from the legendary rock group after more than five decades.
He shared: “After so many wonderful years with 10cc, I must admit that the rigours of touring are no longer manageable for me as I get older, and I feel it’s time to let go of the long hours in airports and endless travel on buses.
“I’m not planning to stop playing altogether. I will still perform but at a pace that feels right, working alongside old friends and a new group of fellow musicians called The Guilty Men.”
Frontman Graham Gouldman confessed that it will feel unusual to perform without his “longest-running musical associate.”
He explained: “When Paul and I first joined forces in 10cc, we never could have imagined that we’d still be at it after 30 years, let alone 52.
“Paul has been my longest musical partner and it will feel different to turn around and see another drummer, but I completely understand why he no longer wants to sit on a plane for 14 hours or wake up in a new hotel every day for weeks at a time.”
Ben Stone, who has previously played with Mike and The Mechanics and Bonnie Tyler, will be taking over on drums.
Paul, who had several runs with 10cc after joining in 1973, performed his final show with the I’m Not In Love band in Alexandria, Virginia this past September.
The group is set to continue their And Another Bloody Greatest Hits Tour in the UK next year.
