The man whose baby photo was used as the cover image of Nirvana’s “Nevermind” album has filed his lawsuit once again against the band.
Spencer Elden, 30, said the image of himself as an infant swimming in a pool nude is child pornography and claims that it has caused him “permanent emotional distress,” BBC News reported.
The case had been thrown out after Spencer didn’t respond to a motion to dismiss which was filed by Nirvana last month, The Associated Press reported. He was allowed to file an amended lawsuit.
The newest filing drops the allegation that the photo was sex trafficking when the image was taken.
Elden was 4 months old at the time of the photograph, Entertainment Weekly reported.
Nirvana’s lawyers had said that “this premise is absurd” and pointed out that the photo was taken before U.S. law allowed victims to sue using the federal sex trafficking of children statute.
Elden said that Nirvana “intentionally” marketed the image that was “child pornography” to promote the 1991 album and that they earned of millions of dollars from the album’s sales.
Robert Fisher who was an art director for the album’s cover had been named as a co-defendant in the initial lawsuit but was removed from the suit. He said he had presented a different example of the cover using a stock image of a different baby whose genitalia were not exposed. Fisher also told the band that they could have digitally removed Elden’s genitalia on the photo that had been used.
Elden says the band deliberately decided to use the entire image.
“Like creators of other controversial album covers, the defendants sought to garner attention by using a sexually explicit image that intentionally focused on Spencer’s carefully positioned enlarged genitals,” his lawyers said, according to BBC News.
The lawyers also said that “the image of Spencer with his naked genitals displayed while grabbing at money resembles the actions of a sex worker.”
Elden is asking for at least $150,000 from each member of the band — Dave Grohl and Krist Novoselic —including the estate of Kurt Cobain and his former wife, Courtney Love, as well as the record labels and the photographer, the AP and the BBC reported.
In the motion to dismiss, the band’s lawyers called Elden’s lawsuit “on its face, not serious” and told the court that “Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby,’” the AP reported.
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