"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]. Nudity must be coupled with other circumstances that make the visual depiction lascivious or sexually provocative."
"Plaintiff has, for many years, embraced and financially benefited from being featured on the album cover. 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."
"The longstanding lawsuit against Nirvana filed by Spencer Elden, who was photographed as the naked baby on the iconic cover the band's 1991 album Nevermind, has been dismissed by a judge, who determined that the image is "not child pornography.""
A federal judge dismissed Spencer Elden's lawsuit against Nirvana, concluding the Nevermind album cover image does not constitute child pornography. The judge found that the pose, focal point, setting and overall context do not suggest sexually explicit conduct and likened the image to a family photo of a nude child bathing. The ruling noted that nudity alone must be accompanied by circumstances making the depiction lascivious or sexually provocative. The judge also cited Elden's longstanding embrace and financial benefit from the image. Elden's attorneys retain the right to appeal the decision.
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