The lawsuit filed against Nirvana by Spencer Elden who, as a baby, appeared on the cover of the ‘Nevermind’ album, has been dismissed again. This time the judge outright rejects Elden’s argument that the famous album artwork constituted illegal sexual imagery.
According to Judge Fernando M Olguin, while baby Elden appears nude in the ‘Nevermind’ image, the nature of the photo isn’t even close to being “within the ambit of “child pornography statute” in the US.
When considering Elden’s nudity in the context of relevant legal precedents, the judge adds, “all we are left with is the image of a naked baby floating underwater, reaching for a dollar bill. This image – an image that is most analogous to a family photo of a nude child bathing – is plainly insufficient to support a finding of lasciviousness”.
In his lawsuit Elden argued that the image was, in fact, “sexually suggestive”, because the baby is underwater, “unable to breathe” and “appears grasping for a dollar like a sex worker”. However, Olgiun says, even “viewing the evidence in the light most favourable” to Elden, “the court has a difficult time understanding how this is a reasonable interpretation or inference to be drawn from the image”.
Elden first sued Nirvana and their label Universal Music over the ‘Nevermind’ artwork in 2021. Prior to the litigation, he had spoken positively about his status as the ‘Nirvana baby’, even recreating the famous image at various points. However, in the lawsuit he focused on the negative impact the famous album cover has had on his life.
Nirvana and Universal, he argued, had “knowingly produced, possessed and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so”.
The lawsuit was originally dismissed because of the statute of limitations, with the band and major label arguing that Elden should have filed his litigation within ten years of his eighteenth birthday, which made 2019 the deadline for beginning his legal action.
However, on appeal that ruling was overturned on the basis that Nirvana and Universal continue to release and distribute the album with the original artwork, and “each republication” of the alleged child pornography “may constitute a new personal injury”.
In his ruling dismissing the child pornography claims, Olguin also notes how Elden had spoken positively about the artwork in the years prior to his legal action.
The judge says that Elden’s actions “relating to the album over time are difficult to square with his contentions that the album cover constitutes child pornography and that he sustained serious damages as a result of the album cover”.
Nirvana and Universal have unsurprisingly welcomed this week’s ruling, but a legal rep for Elden told Law360, “As long as the entertainment industry prioritises profits over childhood privacy, consent and dignity, we will continue our pursuit for awareness and accountability”.
