“Nirvana” wins again in child pornography case

Rock band “Nirvana” has won a second legal battle over its “Nevermind” album cover, with a judge dismissing a lawsuit by Spencer Alden, who claimed a nude photo of him as a baby violated child pornography laws.

Rolling Stone writes about this.

In a ruling earlier this week, the judge said 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. Instead, he compared it to “a family photograph of a naked child bathing”, adding that the image was “clearly insufficient to support a finding of lewdness”.

Spencer Elden, who was four months old at the time of the photo, filed the lawsuit in 2021, when he was 30 years old. The lawsuit was dismissed in 2022, when the court ruled that Elden had waited too long to file a civil lawsuit.

However, an appeals court overturned that ruling in late 2023, after the band had recently re-released an album with the same photo, and allowed Elden to pursue the case.

This time, the court’s decision to dismiss the lawsuit directly addressed Elden’s factual allegations of child pornography. The judge noted that factors to consider include whether the focal point of the depiction is the genitalia or pubic area, whether the person’s pose or clothing is sexually suggestive or inappropriate, and whether the visual material is “intended or designed to provoke a sexual response in the viewer”.

The court ruled that, with respect to the Nevermind album cover, “neither the pose, nor the focal point, nor the setting, nor the general context indicate that the album cover depicts sexually explicit conduct”.

The judge cited other relevant factors, including the presence of Eldenʼs parents at the photo shoot and the fact that photographer Kirk Weddle was a close family friend.

The court also noted instances where the plaintiff "was paid to reproduce the photograph", sold autographs on posters and other memorabilia, referred to himself as a "Nirvana kid", tattooed Nevermind on his chest, and sent Weddle a "thank you card with a hand-drawn illustration of the album cover".

"Eldenʼs actions related to the album over time are difficult to reconcile with his claims that the album cover is child pornography and that he has suffered serious harm as a result," the court ruled.

Eldenʼs legal team said they "respectfully disagree" with the decision and plan to appeal.

• The album “Nevermind” has sold over 30 million copies since its release in 1991.

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