Surprise Appeals Court Ruling Says Nirvana Can Be Sued For Iconic “Child Porno” Cover

One of the most iconic album covers of all time is Nirvana’s “Nevermind” cover, featuring a baby in a swimming pool, nude and showing his member, and swimming towards a dollar bill.

I still remember seeing that on the Best Buy shelves back in the 1990s and thinking, “I can’t believe they can put this in stores!”

But it was “artistic”.

And you might think it was some digital creation or fancy editing, but that’s actually what makes the picture so iconic — it was a genuine picture.

My friends over at The Gateway Pundit tell the story of how the photo came to be — and little Elden, who is the baby in the photo:

The cover infamously features a naked baby in a pool reaching for a dollar bill.

Spencer Elden, the boy in the photo, who is now in his 30s, claims he was the victim of child exploitation — and that the cover amounted to child porn.

The image was taken in 1990 at the Pasadena Aquatic Center when Elden was four months old. Elden’s father, Rick, was involved in special effects for Hollywood and shared a studio with photographer Kirk Weddle, who had the contract to photograph a baby underwater.

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Elden’s father previously told the media, “Babies have a gag reflex. If you blow in their face, they hold their breath. I blew in Spencer’s face and put him in the water. Kirk was shooting 18 frames a second, so Spencer was in the water for about two seconds.”

Elden has since claimed that appearing on the iconic cover caused “extreme and permanent emotional distress with physical manifestations’ and loss of education, wages, and enjoyment of life.”

However, lawyers for Nirvana’s estate have argued that Elden has “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.’”

“Elden re-enacted the photo for money multiple times. He even had the album title tattooed across his chest, he appeared on a talk show wearing a self-parodying nude-colored onesie, and even using the connection to try to pick up women.” the lawyers said in a statement to NBC News last year.

Here is the iconic photo, along with recreations by Elden over the years:

The baby on Nirvana’s Nevermind is now 29 years old. pic.twitter.com/4cUhIpIOUL

— Anton & Irene (@antonandirene) April 8, 2020

So as you can see, Elden seemed to embrace the photo and played it up for decades….

But now?

Now he wants to sue.

The case was originally struck down, but today has been revived by an Appeals Court:

In 1991, the iconic rock band Nirvana released their groundbreaking album “Nevermind,” featuring a provocative cover photo of a naked baby swimming underwater. Spencer Elden, now 30 years old, was the baby in that photo. For years, Elden seemed to embrace his role in the album’s history, even recreating the image as an adult.

However, in recent years, Elden has changed his stance and is now seeking compensation for what he claims is child pornography. He argues that his parents never signed a release for the photo and that the band has profited from his image without his consent.

In 2021, Elden filed a lawsuit against the band, claiming that the photo was taken and used without his consent and that it has caused him emotional distress. The case has gone through several legal twists and turns, with a judge initially dismissing the lawsuit in January 2022, only for it to be revived by an appeals court in December 2023.

As of the latest updates, the case is still ongoing, with both sides presenting their arguments. The outcome of the lawsuit remains uncertain, and it has sparked a debate about the use of images of minors in popular culture.

Appeals court rules Nirvana must face child pornography lawsuit for 'Nevermind' album cover | Click on the image to read the full story https://t.co/prd5XLRvKV

— KETV NewsWatch 7 (@KETV) December 22, 2023

From KETV:

A federal appeals court ruled that Nirvana must face a child pornography lawsuit for their “Nevermind” album cover featuring a nude baby.

The lawsuit was originally filed by Spencer Elden, the man who was the nude baby on the cover of the album. He claimed that the album cover violated federal child pornography laws.

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However, it was ruled in 2022 by a lower court that Elden waited too long for the lawsuit.

That decision was overturned because of a 30th-anniversary re-release of the album in 2021 claiming that the re-release could reset the statute of limitations.

The lawsuit will now return to a lower court, where Elden will prove that the album cover is child pornography.

For their side, Nirvana has responded:

Nirvana lawyer responds after federal court revives lawsuit over 'Nevermind' album cover https://t.co/J35L0VII8k

— CTV News Calgary (@CTVCalgary) December 22, 2023

From CTV News:

Thursday’s decision by a three-judge panel of the Ninth U.S. Circuit Court of Appeals in California reversed that ruling and sent the case back to the lower court.

The appellate panel found that each republication of an image “may constitute a new personal injury” with a new deadline and cited the image’s appearance on a 30th anniversary reissue of “Nevermind” in 2021.

“The question whether the ‘Nevermind’ album cover meets the definition of child pornography is not at issue in this appeal,” the court wrote, according to the New York Times.

In an email to The Associated Press, Nirvana attorney Bert Deixler called the ruling a “procedural setback.”

“We will defend this meritless case with vigour and expect to prevail,” he wrote.

The Associated Press does not typically name people who say they have been victims of sexual abuse unless they come forward publicly, as Elden has.

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Who do you think is in the right here?