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.
Tom Morello has called off two scheduled performances as he focuses on supporting his mother following her recent hospital stay.
In a message shared on Instagram on Thursday, the Rage Against the Machine guitarist revealed that he was flying back to the United States to be with his 102 year old mother, Mary Morello, and help care for her.
"Dear friends, fans and comrades, my dear mom, Mary Morello is back in the hospital and I'm headed home to help look after her," he wrote. "Rocking the UK & Europe with you all this summer has been incredible, and I can't wait to be back with you and continue this movement that we started. With much love, unity and power."
The guitarist had been scheduled to perform at the Tons Of Rock Festival in Oslo, Norway, along with the BBK Music Legends Festival in Bilbao, Spain this weekend.
Earlier this month, Morello also cancelled planned appearances in London and Paris, with ticket holders offered refunds through their original point of purchase. However, he still made it to the Pinkpop festival in the Netherlands.
"I am sorry I had to miss a few shows due to my mom's health," the 62 year old noted. "The incredibly resilient, indefatigable Mary Morello at 102 is now feeling somewhat better and has ordered me back into the fray, charging me with rocking you and fighting fascism six strings at a time."
At this point, Morello has not announced when he expects to return to the stage.
Mary Morello, the musician's mother, built a career as a teacher and activist. She also helped establish the anti censorship organization Parents for Rock and Rap during the late 1980s.
