A lawsuit against Nirvana – filed by a man who claimed his depiction as a naked four-month-old baby on their album cover was child pornography – has been dismissed for the second time.
A photo of Spencer Elden swimming towards a dollar bill on a fishhook had appeared on the cover of the rock band’s iconic album Nevermind in 1991.
But Judge Fernando Olguin threw out the case after ruling that no reasonable jury would consider the image pornographic, likening it instead to a “family photo of a nude child bathing”.
“Other than the fact that plaintiff was nude on the album cover, nothing comes close to bringing the image within the ambit of the child pornography statute,” he said.
Nirvana’s Dave Grohl, Kurt Cobain, and Krist Novoselic in August 1991. Pic: AP
Elden’s legal team did not immediately respond to requests for comment.
Nirvana’s lawyer Bert Deixler said they were “delighted that the court has ended this meritless case and freed our creative clients of the stigma of false allegations”.
The defendants included surviving Nirvana members Dave Grohl and Krist Novoselic, late lead singer Kurt Cobain’s widow Courtney Love, and photographer Kirk Weddle.
The photo was taken at the Pasadena Aquatic Centre in California.
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Nirvana performs live in 1991. Pic: AP
Mr Elden first sued the band and its label Universal Music Group in 2021, accusing them of sexually exploiting him through the image and causing ongoing personal harm.
Judge Olguin initially dismissed the case in 2022 on the grounds that Elden’s claims were time barred, without addressing the substance of the allegations. However, the 9th Circuit Court of Appeals reversed that decision in 2023.
In a 2003 Rolling Stone interview when he was 12, Elden acknowledged the photo and said he was “probably gonna get some money from it”.
However, in his August 2021 lawsuit, Elden argued that his injuries – including emotional distress, lost earning potential, and diminished enjoyment of life – extended into adulthood, allowing him to meet the statute of limitations.
The judge dismissed this claim, stating it would effectively allow Elden to sue Nirvana indefinitely.
Nevermind, which features the hit song Smells Like Teen Spirit, has sold over 30 million copies.
