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Nirvana once again won the cover of the “Nevermind” cover after a judge rejected Spencer Elden’s lawsuit. Elden had asserted that the naked photo of him, as a baby, violated laws on child pornography.
In a decision that was published at the beginning of this week, judge Fernando M. Olguin explained that the iconic photo of Elden, as he swims in a dollar license on a fishing hook, did not fall under the legal definition of child pornography. Instead, he compared it to “a family photo of a naked child bathing” and added that the picture was “obviously inadequate to support the accusation of lust”.
Elden, who was four months old at the time of the cover, submitted his complaint in 2021 at the age of 30. The lawsuit was rejected in 2022 because Olguin judged that Elden had waited too long to submit a civil lawsuit. But an appellate court opened this decision at the end of 2023 and allowed Elden to proceed again.
Court refers to clear criteria
This time Olguin dealt with the allegations of child pornography in his rejection. As the judge explained, courts must take several factors into account – defined in the United States’ case vs. Dost – when it comes to whether certain representations of minors pornography represent. This includes whether the focus of the image is on the genitals or the pubic area, whether pose or clothing is sexually suggestive or inappropriate and whether the representation is “determined or designed to create a sexual reaction from the viewer”.
Olguin decided that the “Nevermind” cover “neither pose, focus, environment nor overall context indicate that the album cover shows sexually explicit behavior”. He also wrote: “In other words: Apart from the fact that the plaintiff was naked on the album cover, no other dost factor even meets the prerequisites of the children’s pornography law.”
The judge led other relevant factors, including the presence of Elden’s parents in the photo shoot and the fact that photographer Kirk Weddle was a close friend. In addition, Elden had previously “accepted the presentation on the album cover and benefited financially”, for example by “paying for the photo”, selling autographs on posters and memorabilia, describing himself as “Nirvana-Baby”, the word “Nevermind” was tattooed and Weddle had a “thanksgiving illustration of the Album cover ”sent.
Contradictions between behavior and lawsuit
“Elden’s actions in relation to the album over time are difficult to reconcile with his claim that the album cover is child pornography and thereby suffered considerable damage,” wrote Olguin.
A lawyer from Nirvana, Bert Deixler, welcomed the decision to Rolling Stone: “We are pleased that the court put an end to this unfounded case and freed our creative clients from the flaws of false accusations.”
Elden’s lawyers initially did not respond to the request from Rolling Stone after a comment.