Behind the scenes of the famous Nirvana album cover over 30 years ago was a lifeguard, a mom and a dad with their naked son, and a photographer. A lawsuit filed by the now-adult in the photo claimed that the image is child pornography.
The photographer Kirk Weddle captured the photo of baby Spencer Elden, now 34, for the rock band Nirvana’s album Nevermind, which was released in September 1991.
The U.S. District Court for the Central District of California granted summary judgment Tuesday, dismissing the case with prejudice.
Austin-based Jackson Walker attorney Josh Romero represented Weddle. He said his client was very excited to hear the lawsuit was dismissed.
“Lawsuits are stressful, lawsuits are expensive. This one is no exception. He’s garnered a lot of attention for his photography, specifically his underwater photography, and to have a claim made of this nature against one of his pieces is disturbing to him,” Romero said. “It’s something that no artist ever wants to be faced with, but he’s faced it. He’s fought it, he succeeded, and so he’s just pleased to hopefully have this behind him.”
Judge Fernando Olguin found the album cover is “unequivocally non-sexual” and didn’t constitute child pornography as a matter of law.
“We are pleased with the court’s decision, and proud to have helped secure a result that upholds the law and supports safeguarding creative expression and free speech,” Jackson Walker partner Emilio Nicolas, who also represented Weddle, said in a news release announcing the dismissal.
This is the second time this case has been dismissed. Elden first filed the lawsuit in 2021, and the court dismissed it for statute of limitations reasons. However, the Ninth Circuit revived the case on appeal in 2023.
“We are delighted that the court has ended this meritless case and freed our creative clients of the stigma of false allegations,” Kendall Brill & Kelly LLP counsel Bert Deixler said in a news release.
Romero added that the album cover has been widely recognized as art. He said Elden’s parents were friends of Weddle’s and were excited to participate in the photo shoot. After the album released, Elden’s parents participated in interviews for the album cover. Elden has recreated the photo as he has gotten older. Elden has the album name Nevermind tattooed on his chest, which can be seen in recreation photos.”
“I think this case sets good precedent to really show the dividing line between what’s appropriate and what’s not appropriate, and the court rightly found that this had a lot of artistic value and was not child pornography,” Romero said.
Romero said the case thoroughly evaluated the factors articulated by the U.S. District Court for the Southern District of California in United States v. Dost.
“Hopefully it will deter future lawsuits that really seek to make a payday out of this stuff when it’s not child pornography, which I think detracts from the real instances of real child pornography that are out there that ought to garner the resources to be challenged,” Romero said.
Kendall Brill & Kelly partners Jeffrey Chemerinsky and Nary Kim, and attorneys David Freenock and Tia Baheri, also represented Weddle, Nirvana, Courtney Love, David Grohl and UMG Recordings.
Marsh Law Firm attorneys Robert Lewis, Margaret Mabie and James Marsh and Liberty Law Office attorney Micha Liberty represented Elden. They did not immediately respond to requests for comment.
The case is Spencer Elden v. Nirvana, LLC, et al., 2:21-cv-06836.