Krist Novoselic, Dave Grohl and Pat Smear of Nirvana arrive for the 56th annual Grammy Awards at Staples Center in Los Angeles in January 2014. File Photo by Jim Ruymen/UPI | License Photo
Sept. 4 (UPI) -- Nirvana has won a final dismissal of the child pornography lawsuit over the cover of the grunge band's 1991 album Nevermind, which depicts a four-month-old naked baby.
The lawsuit was filed by Spencer Elden, who was depicted on the album cover, in a California federal court last year and named the band's surviving members, Dave Grohl and Krist Novoselic, as well as Courtney Love -- the widow of late lead singer Kurt Cobain and executor of his estate.
Elden, 31, argued in the lawsuit that the infamous image amounted to child pornography, that his parents never signed a release for the use of his image and that he never received any compensation. His lawsuit sought $150,000 in damages.
Rick Elden, his father, told NPR in 2008 that Kirk Weddle, a friend of his who took the photo, paid him $200 to throw his son into the pool for the shot.
Judge Fernando M. Olguin first dismissed the lawsuit in January after Elden failed to file an opposition to the defendants' motion to dismiss by Dec. 30.
The band's motion to dismiss then had said Elden profited from being on the album cover, that the statute of limitations had already passed and that the image is not sexually exploitative.
Elden was allowed to file an amended complaint three times, the most recent iteration of the lawsuit that was dismissed by Judge Olguin on Friday, according to the ruling.
"Because [Elden] 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," Olguin wrote in his ruling.
Elden previously recreated the photograph on several occasions but told GQ Australia in a 2016 interview that he was reconsidering whether it was okay that he was depicted naked on the album cover.
"I've been going through it my whole life. But recently I've been thinking, 'What if I wasn't OK with my freaking penis being shown to everybody?'" Elden said. "I didn't really have a choice."