Spencer Elden, who was photographed as the naked baby on the cover of Nirvana’s 1991 Nevermind album, is not backing down from pursuing legal action against the band. Following a judge’s second dismissal of Elden’s child pornography lawsuit earlier this week, his lawyers have once again filed an appeal.
To recap, Elden, who is now in his 30s, sued Nirvana and other parties for child exploitation back in 2021, claiming the image of him amounted to child pornography, and that his legal guardians never granted consent for the band to use the photo as its album cover. Judge Fernando M. Olguin tossed the lawsuit in 2022 based on the statute of limitations, but it was revived by an appeals court. Earlier this week, Olguin dismissed the suit again, determining that the image is “not child pornography.”
On Thursday, just two days after Judge Olguin’s latest ruling. Elden’s attorneys filed a new appeal to reinstate the lawsuit once again. The lawyers are asking the Ninth Circuit Court of Appeals to overturn Olguin’s judgment and allow a trial to take place.
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In a statement to Billboard, Bert Deixler, an attorney representing Nirvana, Universal Music Group, and Nevermind photographer Kirk Weddle, insisted, “We will resist with vigor and will prevail.”
As part of his ruling dismissing the lawsuit on Tuesday, Judge Olguin reasoned, “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].”
The judge also pointed out that Elden has profited from the image by autographing memorabilia and calling himself the “Nirvana baby.”