Chris Evans recalls album blunder during Dave Grohl interview

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Spencer Eden, who is pictured on the artwork as a baby in a swimming pool chasing a dollar on a fishing line, sued the band alleging sexual exploitation, and that the artwork constituted child sexual abuse. Now aged 30, Mr Eden says the world famous image caused him “extreme and permanent distress,” as well as loss of wages and “enjoyment of life.” Nirvana filed to dismiss last month, saying Elden’s arguments lacked merit. In California District Court on Monday, Judge Fernando M Olguin dismissed the case “with leave to amend”.

Lawyers for Mr Elden missed the deadline to file an opposition to the Nirvana estate’s request to dismiss the case made in December.

His team have until 13 January to refile.

Lawyers speaking for the band said: “Elden’s claim that the photograph on the Nevermind album cover is ‘child pornography’ is, on its face, not serious.”

The legal team added that not everyone who owned a copy of the critically acclaimed album would “on Eden’s theory be guilty of felony possession of child pornography.”

They continued by noting that, until recently, Elden had seemed to enjoy the notoriety of being the “Nirvana baby”.

Speaking of his fame, they said: “He has re-enacted the photograph in exchange for a fee, many times; he has had the album title… 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.”

The motion was filed by lawyers representing surviving Nirvana members Dave Grohl and Krist Novoselic; Kurt Cobain’s widow Courtney Love; and Kirk Weddle, the photographer of the cover image.

Regardless of the merits of Elden’s case, they argued, the statute of limitations on his claims had expired in 2011, meaning he was too late to sue.

His lawyers have argued that the statute of limitations does not apply, as long as Nevermind continues to be sold in its current form.

“Child pornography is a forever crime,” Marsh Law told Variety in a statement last year.

It added: “Any distribution of or profits earned from any sexually explicit image of a child not only creates longstanding liability but it also breeds lifelong trauma. This is common for all of our clients who are victims of actively traded child pornography, regardless of how long ago the image was created.”

Elden’s team had until 30 December to respond to Nirvana’s motion to dismiss, but missed the deadline.

Mr Elden’s attorneys at Marsh Law said they will pursue an amended complaint, telling Rolling Stone, “In accordance with the Court’s order we will be filing a Second Amended Complaint very soon. We are confident that Spencer will be allowed to move forward with the case.”

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Summing up the case, Nirvana’s lawyers stated: “There is no doubt that Elden’s claims will fail on the merits,”

They added: “Elden’s claims fail, at the outset, because they are time-barred. Elden asserts two causes of action, one under the federal statute that permits victims of certain federal child pornography criminal offenses to sue for civil damages; and another under the federal statute that permits victims of certain trafficking crimes to sue for civil damages. Neither cause of action is timely.”

Nirvana was a hugely successful band in the 1990s, until the untimely death of lead singer Kurt Cobain who sadly took his own life in 1994.

Since then, band members have had varying solo success, with drummer Dave Grohl moving on to form the equally successful Foo Fighters.

Cobain was posthumously inducted into the Rock and Roll Hall of Fame, along with Nirvana bandmates Krist Novoselic and Dave Grohl, in their first year of eligibility in 2014.

The album “Nevermind” has sold more than 30 million copies since its release in 1991.

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