By Blake Brittain
(Reuters) -A federal judge again threw out a lawsuit by a man who accused iconic grunge rock band Nirvana of distributing child pornography by using a photograph of him as a naked, swimming baby on the cover of its breakthrough 1991 album “Nevermind.”
U.S. District Judge Fernando Olguin tossed out the lawsuit filed by plaintiff Spencer Elden for a second time after finding that no reasonable jury would consider the picture pornographic.
“Other than the fact that plaintiff was nude on the album cover,” nothing “comes close to bringing the image within the ambit of the child pornography statute,” Olguin said.
Attorneys for Elden did not immediately respond to a request for comment on Wednesday. Nirvana’s attorney 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.”
The defendants included surviving Nirvana members Dave Grohl and Krist Novoselic, late lead singer Kurt Cobain’s widow Courtney Love and photographer Kirk Weddle.
The lawsuit stemmed from Nirvana’s use of a photo taken by Weddle at the Pasadena Aquatic Center in California that depicted Elden swimming naked toward a dollar bill on a fishhook. Elden, now 34, first sued the band and its label Universal Music Group in 2021, accusing them of sexually exploiting him through his depiction on the cover and causing him continuing personal harm.
Olguin dismissed the case in 2022 after finding Elden’s claims were time-barred without addressing the substance of his allegations. The 9th Circuit reversed that decision in 2023.
Olguin determined on Tuesday that the image could not be considered child pornography, comparing it instead to a “family photo of a nude child bathing.”
(Reporting by Blake Brittain in Washington; Editing by David Bario and Sergio Non)
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