Nirvana have prevailed (again) in the legal battle over the cover of Nevermind, with a judge dismissing a lawsuit brought by Spencer Elden, who claimed the naked photo of him as a baby violated child pornography laws.
In a ruling issued earlier this week, Judge Fernando M. Olguin said that the iconic photo of Elden swimming after a dollar bill on a fishing hook did not fall within the scope of what is legally defined as child pornography. He instead compared it to “a family photo of a nude child bathing,” adding that the image was “plainly insufficient to support a finding of lasciviousness.”
Elden, who was four-months-old at the time he appeared on the Nevermind cover, filed his lawsuit in 2021, when he was 30. The suit was actually dismissed in 2022 after Olguin ruled that Elden had waited too long to file a civil suit. But an appeals court overturned that decision in late 2023, allowing Eldin to proceed again.
This time around, Olguin’s decision to dismiss the suit more directly addressed Elden’s actual child pornography claims. As the judge noted, courts must consider multiple factors — outlined in the case United States vs. Dost — when judging whether certain visual depictions of minors constitute child pornography. These include whether the focal point of the image is the genitalia or pubic area, whether the person’s pose or attire is sexually suggestive or inappropriate, and whether the visual is “intended or designed to elicit a sexual response in the viewer.”
Olguin ruled that, when it came to the Nevermind cover, “neither the pose, focal point, setting, nor overall context suggest the album cover features sexually explicit conduct.” He continued: “In other words, other than the fact that plaintiff was nude on the album cover, no other Dost factor comes close to bringing the image within the ambit of the child pornography statute.”
The judge cited other relevant factors, including the presence of Elden’s parents at the photo shoot, and the fact that the photographer, Kirk Weddle, was a close friend. He also said Elden previously “embraced and financially benefitted from being featured on the album cover,” noting the times he was “paid to reenact the photo,” sold autographs on posters and other memorabilia, referred to himself as the “Nirvana baby,” tattooed Nevermind on his chest, and sent Weddle a “thank-you postcard depicting a hand-drawn illustration of the album cover.”
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,” Olguin wrote.
A lawyer for Nirvana, Bert Deixler, celebrated the decision in a statement shared with Rolling Stone, saying: “We are delighted the Court has ended this meritless case and freed our creative clients of the stigma of false allegations.”
Lawyers for Elden did not immediately return Rolling Stone‘s request for comment.
