The longstanding lawsuit against Nirvana filed by Spencer Elden, who was photographed as the naked baby on the iconic cover the band’s 1991 album Nevermind, has been dismissed by a judge, who determined that the image is “not child pornography.”
According to Billboard, Judge Fernando M. Olguin wrote in a ruling issued on Tuesday, “Neither the pose, focal point, setting, nor overall context suggest the album cover features sexually explicit conduct. This image — an image that is most analogous to a family photo of a nude child bathing — is plainly insufficient to support a finding of [child pornography].”
It’s not the first time Judge Olguin has dismissed the lawsuit, as he previously did so in 2022 for the simple reason of violating the statute of limitations. However, that ruling was overturned by an appeals court in 2023, reinstating Elden’s lawsuit.
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Furthering his explanation for dismissing the suit this time around, Olguin noted, “Nudity must be coupled with other circumstances that make the visual depiction lascivious or sexually provocative.”
The judge also pointed out that Elden, who’s now in his 30s, has profited from the image by signing memorabilia and referring to himself as the “Nirvana baby.”
“Plaintiff has, for many years, embraced and financially benefited from being featured on the album cover,” stated Olguin. “Plaintiff’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.”
In his original lawsuit, Elden claimed that the image was child pornography and that his legal guardians didn’t formally consent to his image being used on the album cover.
While it appears as if this case may finally be over, Billboard notes that Elden’s attorneys are allowed to appeal the ruling again.