The photograph of plaintiff Spencer Elden, taken when he was about four months old, was used as cover-art for Nirvana’s second album, “Nevermind.” In his lawsuit, Elden, who was nude in the picture, claimed that the imagery was tantamount to child pornography.
A federal judge has again dismissed a lawsuit filed by a man who featured on the cover of a 1991 Nirvana album.
According to The New York Times, the photograph of plaintiff Spencer Elden, taken when he was about four months old, was used as cover-art for Nirvana’s second album, “Nevermind.” In his lawsuit, Elden, who was nude in the picture, claimed that the imagery was tantamount to child pornography.
However, in a Tuesday ruling, Judge Fernando Olguin of U.S. District Court for the Central District of California ruled that the photograph does not, in fact, 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, noting that, other Elden’s nudity, nothing about the picture came “close to bringing the image within the ambit of the child pornography statue.”
Absent any overt sexual connotation, Olguin said, “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 almost analogous to a family photo of a nude child bathing—is plainly insufficient to support a finding of lasciviousness.”
Instead, Olguin suggested that the best corollary is a family picture taken at a beach—the type of image that might feature a nude child, but which has no sexual connotations whatsoever and wouldn’t ordinary be considered abusive.
The court also observed that, in the decades since the album’s release, Elden himself actively embraced the status that came with being “the Nirvana baby.” Aside from tattooing “Nevermind” across his chest, he also sought out and accepted opportunities to recreate the photograph, as an adult, in exchange for compensation.
As LegalReader.com has reported before, attorneys for Nirvana had also accused Elden of leveraging his very minor celebrity to, among other things, meet women.
Bert H. Deixler, a lawyer for the band, said in a Wednesday statement that his clients are “delighted” that, not only has the court has finally “ended this meritless lawsuit,” but they are now “free of the stigma of false allegations.”
In an earlier statement, Elden justified his decision to file suit, saying that it took him years to realize that the photograph might be inappropriate.
“Recently, I’ve been thinking, ‘What if it wasn’t OK with my freaking penis being shown to everybody?” he told GQ Australia in an interview. “I didn’t really have a choice.”
Interestingly, when asked what prompted his change in feeling, he seemed to indicate unhappiness with being ignored by the band. He had, for instance, asked Nirvana to participate in his art show—but instead of being connected directly with its members, he was referred their management.
“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?”
Sources
Judge Dismisses Lawsuit Over Naked Baby on Nirvana’s ‘Nevermind’
Nirvana again defeats child pornography lawsuit over ‘Nevermind’ cover
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