Spencer Elden filed his second amended complaint late Wednesday, meeting a deadline set by Judge Fernando M. Olguin to reinstate the claims. The judge previously tossed the case Jan. 3 on the grounds Elden had failed to respond to a motion to dismiss filed by Nirvana and the other defendants last month.
In his new filing, Elden, now 30, drops his claim related to sex trafficking after Nirvana’s lawyers argued the alleged trafficking of Elden occurred before lawmakers made it possible for victims to sue using the federal sex-trafficking-of-children statute.
But Elden re-ups his other claims alleging Nirvana — as well Kurt Cobain’s estate, photographer Kurt Weddle, and various record labels — “intentionally commercially marketed the child pornography depicting Spencer and leveraged the lascivious nature of his image to promote the Nevermind album, the band, and Nirvana’s music, while earning, at a minimum, tens of millions of dollars in the aggregate.”
The latest complaint also includes an attached statement from Robert Fisher, an art director for the Nevermind cover who was dropped as a defendant in the lawsuit on Dec. 22. The statement, dated Dec. 21, attaches artwork purported to be Fisher’s original mock-up of the cover using a stock image. The mock-up has a different naked baby in a pose that doesn’t show any genitalia. Elden’s complaint points this out and suggests it proves the band made a deliberate decision to go in a different direction artistically.
In their Dec. 22 motion to dismiss the suit, 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. They also argued too much time had passed for Elden to sue.
“There is no doubt that Elden’s claims will fail on the merits,” the band’s lawyers wrote.
From Rolling Stone US