After Elden failed in December’s motion to dismiss, California Judge Fernando M. Olguin dismissed the case. Rolling Stone reports that Elden now has until January 13th to file an amended complaint, or the suit will be dismissed.
Elden, now a 30-year-old male, filed an initial lawsuit in August alleging that a photograph of him naked as a four-month-old infant on Nirvana’s 1991 album cover violated child poaching laws. He also claimed that he suffered “lifelong damages.” This lawsuit is about one of the most iconic album covers in music history. It shows Elden in a pool of liquid while reaching for money with a fishhook.
Elden claimed that his “identity” and his legal name were forever linked to the sexual exploitation that he suffered as a child. He also claimed that the band made millions off his image, while he was not compensated. Each of the 17 defendants, which includes former members of Nirvana as well as several record companies and art directors, were required to pay Elden $150,000 each or unspecified damages.
Nirvana lawyers responded in December by arguing that the case should not be dismissed as Elden had spent so many years embracing his role as album cover model. Lawyers noted that Elden often reenacted the photograph for money, had the album title tattooed across the chest, sold autographed albums online and even used the connection to try to get women.
The lawyers also argued that the image was not child pornography and sex trafficking and that Elden’s claims of the two were beyond the 10-year limit.
The lawyers stated that Elden’s claim about Nevermind’s album cover photograph being ‘child pornography is not serious.” “A quick examination of the photograph or Elden’s conduct (not to forget the presence of the photograph in the homes millions of Americans who, according to Elden’s theory, are guilty felony possession child pornography) will make that obvious.”
The Monday ruling stated that Elden had until December 30, to respond to Nirvana’s motion to dismiss. However, Elden failed to meet this deadline. Spin Magazine reported that Elden could choose to file a new petition within the next 10 working days. Nirvana’s estate has until January 27th to respond if Elden does not.
Judge Olguin stated Monday that failure to file a Second Amended Complaint within the prescribed time will result in the action being dismissed.
It is not clear if Elden will continue with the case as of Tuesday morning.
