Judge tosses ‘Nirvana baby’ child porn suit out with the pool water

Hillel Aron

(CN) — A federal judge dismissed a lawsuit filed by the so-called “Nirvana baby,” who appeared on the cover the grunge band’s breakthrough album “Nevermind” and accused the band of distributing child pornography.

“Plaintiff’s contentions that the album cover image was intended to elicit a sexual response in the viewer are unpersuasive,” wrote U.S. District Judge Fernando Olguin in his 19-page ruling. “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 lasciviousness.”

Taking up Nirvana’s motion for summary judgment, Olguin concluded that it was not child porn, and that the baby in the photograph was not engaging in sexually explicit conduct.

To make that determination, the judge looked at six factors: whether the focal point of the photo is on the child’s genitalia or pubic area; whether the setting of the photo is sexually suggestive; whether the child is depicted in an unnatural pose or inappropriate attire; whether the child is nude or partially nude; whether the photo suggests sexual coyness or a willingness to engage in sexual activity; and whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

While the baby is clearly nude in the photograph, Olguin determined that the album cover failed to meet any of the other factors.

“Neither the pose, focal point, setting, nor overall context suggest the album cover features sexually explicit conduct,” Olguin wrote in his Tuesday ruling. “All we are left with is the image of a naked baby floating underwater, reaching for a dollar bill.”

The band’s attorney, Bert Deixler of Kendall Brill & Kelly, praised the ruling, saying in an email: “We are delighted that the court has ended this meritless case and freed our creative clients of the stigma of false allegations.”

Attorney James Marsh said his client, Spencer Elden, would 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,” Marsh said in a written statement.

Elden was just four months old when, in 1991, his parents agreed to let photographer Kirk Weddle take a photo of the infant underwater, for the cover of Nirvana’s second album, for which they were paid $200. Later, a dollar bill and fish hook were superimposed onto the image — a statement, members of the band have said, about the tension between art and commerce.

The band’s first album had been put out by a small independent label. This one would distributed by Geffen records, a much larger company.

Nevermind, which featured such songs as “Smells Like Teen Spirit” and “Come as You Are,” was a sensation, going on to sell more than 10 million copies and catapulting the band into worldwide fame. The album cover, too, was lauded, and is now part of New York Museum of Modern Art’s permanent collection.

Elden’s father first identified his baby son as the so-called “Nirvana baby” in an interview with Entertainment Weekly, in 1992. Once grown, Elden himself would give interviews about the cover, sold autographed album memorabilia and even posed for a photo recreation in 2016.

At the time, he said, “It’s cool but weird to be part of something so important that I don’t even remember.”

But by 2020, Elden had changed his mind. He reported the album cover as potential child pornography to the FBI, which declined to investigate. In 2021, he sued Nirvana, its record label, Weddle and lead singer Kurt Cobain’s estate, demanding at least $150,000 for each defendant.

“This unprecedented album cover is perhaps the first and only time a child’s full-frontal nudity has been used to sell a product,” Elden’s attorneys said in a statement at the time. “Spencer’s image constitutes child pornography and each of the Nirvana defendants robbed our client of his dignity and privacy.”

In his complaint, Eldon claimed: “To ensure the album cover would trigger a visceral sexual response from the viewer, Weddle activated Spencer’s ‘gag reflex’ before throwing him underwater in poses highlighting and emphasizing Spencer’s exposed genitals."

In 2023, Olguin dismissed the suit, finding that the complaint was filed after the 10-year statute of limitations ran out. But the Ninth Circuit Court of Appeals overturned the ruling, citing the U.S. Supreme Court’s holding that “every viewing of child pornography is a repetition of the victim’s abuse.”

The appeals court found that Elden could still sue for damages he claimed to have suffered from republications of the “Nevermind” album cover, including albums, t-shirts and posters, in the ten years before the lawsuit was first filed. The three-judge panel did not rule on the substance of the case — that is, whether or not the naked underwater baby was child porn.