The man who appeared as a nude baby on the cover of Nirvana’s 1991 album Nevermind is once again asking an appeals court to resurrect his child pornography lawsuit over the iconic album art.
Lawyers for Spencer Elden filed their appeal on Thursday (Oct. 2), just two days after a federal judge issued a judgment throwing out his case against Nirvana for a second time. Judge Fernando M. Olguin originally tossed the lawsuit as time-barred back in 2022, but the Ninth Circuit Court of Appeals revived the claims a year later on technicalities.
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Judge Olguin held this time around that there’s nothing pornographic about the famous Nevermind album art, which depicts a four-month-old Elden swimming in a pool and chasing a dollar attached to a fishhook. The judge said this image is not sexually explicit or suggestive, but rather is “most analogous to a family photo of a nude child bathing.”
Elden will now once again ask the Ninth Circuit to overturn that judgment and allow the case to move forward toward trial. His lawyers did not immediately return a request for comment on the appeal.
Nirvana’s legal team, meanwhile, appears confident as they gear up for a second Ninth Circuit showdown in the long-running battle.
“We will resist with vigor and will prevail,” says attorney Bert Deixler, who represents the band as well as its label, Universal Music Group, and Nevermind cover photographer Kirk Weddle, in a comment to Billboard.
Nevermind was originally released in in September 1991, topping the Billboard 200 in January 1992 and ultimately spending a whopping 554 weeks on the chart. It’s widely considered one of the most influential albums in rock history, and its cover art has been interpreted as an edgy critique of greed and capitalism.
Elden, who is now in his 30s, has been pursuing legal action over the cover since 2021. His civil lawsuit alleges that the display of his infant genitals constitutes child pornography under federal law — claims long denied by Nirvana and now rejected by Judge Olguin.
In addition to determining that the Nevermind cover was not sexually-charged, the judge pointed out in his ruling that Elden appeared to endorse the photo for many years before deciding to pursue litigation. Elden at times reenacted the photo, sold autographed memorabilia, and even referred to himself as the “Nirvana baby” — actions that are “difficult to square with his contentions that the album cover constitutes child pornography and that he sustained serious damages as a result,” according to Judge Olguin.
