Nirvana lawsuit from ‘Nevermind’ baby over artwork dismissed: “Not child pornography”

The lawsuit filed by Spencer Elden – who was the naked baby on the iconic cover of Nirvana’s ‘Nevermind’ album – against the band has been dismissed again.

The long-standing lawsuit was thrown out earlier this week by a judge who ruled that the image that was used for the cover of the hit 1991 album is “not child pornography”.

On Tuesday (September 30), Billboard reports that Judge Fernando M. Olguin wrote in a ruling: “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 added that “nudity must be coupled with other circumstances that make the visual depiction lascivious or sexually provocative,” and outlined that Elden (who is now in his 30s) has profited from the album cover by referring to himself as the “Nirvana baby” and signing memorabilia.

“Plaintiff has, for many years, embraced and financially benefited from being featured on the album cover,” Olguin shared. “Plaintiff’s actions relating to the album over time are difficult to square with his contentions that the album cover constitutes child pornography and that he sustained serious damages as a result.”

His lawsuit against the grunge band was raised in August 2021, when he claimed that the photo used was child pornography, and that his legal guardians did not formally give consent for the photo to be used for the cover. He then amended the case a couple of months after, alleging that “Weddle soon after produced photographs of [him] dressed up and depicted as Hugh Hefner.”

That was the third time that Elden had attempted to sue the surviving members of the band – Dave Grohl and Krist Novoselic – as well as the estate of Kurt Cobain, photographer Krik Weddle and numerous record labels.

In September 2022, a US District judge in Los Angeles dismissed the claims, saying that they violated the statute of limitations, but in December 2022, Elden moved to appeal the court’s decision.

In 2023, that court reinstated his lawsuit on the basis that “each republication of child pornography may constitute a new personal injury, Elden’s complaint alleging republication of the album cover within the 10 years preceding his action was not barred by the statute of limitations.”

The ruling also stated that “the question of whether the ‘Nevermind’ album cover meets the definition of child pornography was not at issue in that appeal.”

Throughout, Nirvana’s lawyers have remained staunch on their stance that Elden “has been fully aware of the facts”, with Grohl himself noting that Elden has a tattoo based on the ‘Nevermind’ artwork.

In addition to damages sought, Elden’s demands included Nirvana redacting the original ‘Nevermind’ cover for any potential re-releases. He looked to have it censored for the album’s 30th anniversary edition, but he was unsuccessful in this endeavour.

Nirvana celebrated the 30th anniversary of their seminal album ‘In Utero’ in September 2023, and at the time Krist Novoselic spoke to NME about that record, and the potential of using AI to complete and restore old music, and the chances of the surviving members dropping new material.

“It’s amazing what can happen when three people with instruments get together. You could make so much sound in a way that captures the imagination,” he shared. “That’s the beauty of music: you invite people in. The record can be pretty, but it can also be dark. Going back to this record, I was just reminded of our humanity as a group. There were a lot of different statements on there and that’s what you get: the post-’Nevermind’ Nirvana, after becoming a world-famous band.”