Federal judge throws out lawsuit that claimed Nirvana’s use of baby on album cover was child abuse

A federal judge dismissed a lawsuit this week against the band Nirvana filed by the man who appeared as a naked baby on the cover of its “Nevermind” album and claimed it was child pornography.

In dismissing the suit Tuesday, Judge Fernando Olguin ruled that the intent of the picture was not pornographic, that the imagery was meant to depict and criticize capitalism. The judge also said the plaintiff had profited from and gladly claimed the mantle of the “Nirvana baby.” 

Judge Olguin wrote that “neither the pose, focal point, setting, nor overall context suggest the album cover features sexually explicit conduct,” arguing that the album cover was most analogous to a family photo showing a child bathing in the nude.

Spencer Elden, now in his 30s, was depicted underwater in a swimming pool on the cover of the 1991 album, trying to catch money on a fishing hook. His genitalia is visible and because of that, Mr. Elden claimed in his suit, first filed in 2021, that the album cover was child pornography.

“I’ve been going through it my whole life. But recently I’ve been thinking, ‘What if I wasn’t OK with my freaking penis being shown to everybody?’ I didn’t really have a choice,” Mr. Elden previously told GQ Australia.

In his judgment, Judge Olguin said the “plaintiff has, for many years, embraced and financially benefitted from being featured on the album cover. … This includes plaintiff being paid to reenact the photo, selling autographed album-related posters and memorabilia, participating in interviews about the album cover, and even referring to himself as the ‘Nirvana baby.’”

Judge Olguin also said that Mr. Elden tattooed the album’s name on his chest and even sent a thank-you note with a drawn illustration of the cover to Kirk Weddle, the man who photographed him in the pool.

Nirvana attorney Bert Deixler told Billboard that “we are delighted that the court has ended this meritless case and freed our creative clients of the stigma of false allegations.”

Mr. Elden’s team told Rolling Stone they plan to appeal the ruling.

“As long as the entertainment industry prioritizes profits over childhood privacy, consent, and dignity, we will continue our pursuit for awareness and accountability,” attorney James Marsh told Rolling Stone.

Judge Olguin originally dismissed the case in 2022 because it was filed after the 10-year limit for filing a civil case. But the U.S. Ninth Circuit Court of Appeals ruled in 2023 the case could go forward on the grounds that re-publications of the album “may constitute a new personal injury,” and as such the case fell within the 10-year limit.