A federal judge in the United States dismissed a lawsuit brought by a man who claimed that, as the naked baby featured on the cover of the rock band Nirvana’s 1991 album, he had been the victim of child sexual abuse imagery.
The photograph, taken when the man, Spencer Elden, was four months old, became synonymous with Nirvana’s seminal second album, Nevermind.
Judge Fernando Olguin of the US district court for the Central District of California ruled Tuesday that the album cover did not meet the criteria for child sex abuse imagery.
“Neither the pose, focal point, setting nor overall context suggest the album cover features sexually explicit conduct,” Olguin wrote. He added that beyond the fact that Elden was naked on the album cover, nothing came “close to bringing the image within the ambit of the child pornography statute,” likening the photo to a family snapshot of a child bathing.
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Olguin also wrote that it was difficult to reconcile Elden’s actions with his claim that the image was child sex abuse imagery.
Elden had financially benefited from being featured on the album, the judge said, including by being paid to re-enact the photo, selling autographed album-related posters and memorabilia, and referring to himself as the “Nirvana baby”. The judge also noted that Elden had tattooed the album’s name across his chest.
The win for Nirvana was the culmination of a legal battle lasting more than four years. Elden had filed his lawsuit against the estate of Kurt Cobain, Nirvana’s lead singer; former band members Dave Grohl and Krist Novoselic; and Cobain’s widow, Courtney Love, among other parties.
Bert H Deixler, a lawyer for Nirvana, said in statement Wednesday that his clients were “delighted” that the court had “ended this meritless lawsuit” and that they were now “free of the stigma of false allegations”.
A lawyer representing Elden did not immediately respond to a request for comment Wednesday. Billboard earlier reported the lawsuit’s dismissal.
Elden, an artist, first filed a federal lawsuit in 2021, accusing the band and its record label of having profited off his naked image and of having knowingly produced, possessed and advertised commercial child sex abuse imagery depicting him.
The lawsuit was then dismissed twice – once because his lawyers missed a deadline to respond to a motion and again when Olguin ruled that it had not been filed within the 10-year statute of limitations.
A federal appeals court revived the lawsuit in December 2023 after finding that republication of the image – the album had been reissued in 2021, for example – could constitute a new personal injury.
The picture was taken by photographer Kirk Weddle at the Rose Bowl Aquatics Center in Pasadena, California. He selected it from among dozens of pictures of babies he had photographed for the album cover, which Cobain had envisioned showing a baby underwater. Elden’s parents were paid $200 for the picture.
The selected image was later altered to show the baby chasing a dollar bill that dangled from a fishhook.
Nevermind, which was released in September 1991, defined a generation of music listeners and helped push grunge rock into the mainstream. The album catapulted Nirvana to international stardom with hits like Smells Like Teen Spirit and Come as You Are.
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Although Elden participated in celebrating the album over the years, his feelings shifted. In an interview with GQ Australia to mark the 25th anniversary of the album, Elden said he was upset that people still talked about the cover.
“Recently, I’ve been thinking, ‘What if I wasn’t okay with my freaking penis being shown to everybody?’” he said. “I didn’t really have a choice.”
Asked when his feelings changed, Elden said he had asked the band if it wanted to participate in his art show.
“I was getting referred to their managers and their lawyers,” he said. “Why am I still on their cover if I’m not that big of a deal?” – This article originally appeared in the New York Times
