The man who appeared as a naked baby on a Nirvana album cover has had his lawsuit against the 1990s grunge band thrown out for a second time.
Elden claimed that he had been the victim of child sexual exploitation, arguing that the iconic Nevermind cover art was a child sexual abuse image that had been “knowingly produced, possessed and advertised” by the band.
However, Judge Fernando Olguin said that the album artwork was more like “a family photo of a nude child bathing” and ruled that no reasonable jury would consider it a pornographic image.
“Other than the fact the plaintiff was nude on the album cover, nothing comes close to bringing the image within the ambit of the child pornography statute,” Olguin said.
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”.
Deixler was representing surviving members Dave Grohl and Krist Novoselic, photographer Kirk Weddle and Courtney Love (as executor of the Kurt Cobain estate).
The cover image for the 1991 album shows the infant Elden in a swimming pool reaching for a dollar bill with his genitals exposed.
Elden originally claimed that neither he nor his legal guardians signed a release authorising the use of “any images of Spencer or of his likeness”.
He also alleged that appearing on the cover had caused him “extreme and permanent emotional distress with physical manifestations”.
But Nirvana claimed that Elden had “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’”, including recreating the photo for money and having “Nevermind” tattooed on his chest.
“Elden’s claim that the photograph on the Nevermind album cover is ‘child pornography’ is, on its face, not serious,” a joint statement said.
“A brief examination of the photograph, or Elden’s own conduct (not to mention the photograph’s presence in the homes of millions of Americans who, on Elden’s theory, are guilty of felony possession of child pornography) makes that clear.”
The album, which features the track “Smells Like Teen Spirit”, has sold more than 30 million copies.
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