Nirvana Beats Former Baby’s Lawsuit (Again)
As you will recall, I said quite some time ago that this lawsuit appeared to be not just baseless, but frivolous and even sanctionable." See Nevermind' Cover Baby Sues Nirvana for Showing Him Naked" (Sept. 2, 2021) (in which I said that). Yet here we are, having to talk about it again four years later?
Well, I guess we don't have to. But we're gonna.
Actually, this is the fourth time we've talked about it. See also Nirvana Beats Former Baby's Lawsuit" (Sept. 8, 2022) and Ninth Circuit Revives Nevermind' Cover Baby's Frivolous Lawsuit" (Dec. 26, 2023). I reiterated at the end of the 2023 piece that I thought this case would fail because of its extreme stupidness," but lamented that now at least another year will pass and more money and court time will be wasted before that happens." As it turns out, it was another year and a half. But my final prediction, that readers will be subjected to at least one more post on this goofy case when it does" fail, was spot-on. Yes indeed, I totally nailed that one.
On the off chance you didn't read those articles or even the headline of the first one, you should understand that this lawsuit was filed by Spencer Elden, who as a baby was pictured on the cover of Nirvana's 1991 album Nevermind," and his claim was-he made this up, not me-that by showing his baby dingus on the cover Nirvana had violated federal child-pornography laws. Strangely, he did not also sue his parents, who brought him and his dingus to the photo shoot, for which they were paid a couple hundred bucks. The previous order involved the statute of limitations, and the Ninth Circuit reversed it.
The new order (see below) granted summary judgment for Nirvana et al., so its discussion of the evidence is much more detailed than before. Among other things, we learn that there is no question that plaintiff's parents agreed to the photo shoot" (Plaintiff had claimed otherwise), that unsurprisingly, none of the individuals present expressed any sexual intent during the photo shoot," and that the fishing line and dollar bill were added in post-production.
We also learn that in 2019, at the age of 28 or 29, Elden reported the album cover" to the FBI as a possible violation of child-pornography laws. This interpretation of the law likely came as a bit of a surprise to FBI agents, many of whom probably owned a copy of that very image (as of last year, 40 million copies of the album with his baby dingus on it had been sold). But probably not for that reason, the agency declined to investigate." According to the court, Elden testified that he called the FBI, which effectively said it didn't know if this is an issue [it] can handle[,]' just kind of told [plaintiff] good luck[,] and has not reached out since."
The court began its analysis by saying it had serious questions regarding plaintiff's summary judgment papers," which is not a great way for an analysis to begin if you are the plaintiff. The main question was why plaintiff cited no evidence to support various assertions, and when he did cite evidence, it often failed to dispute anything that mattered. Since the whole purpose of the procedure is to figure out whether there are disputed fact issues for trial, this also was not a good sign. The judge could have granted the motion for this reason alone, but he went on to address the merits.
I shouldn't use the word merits," because the claim didn't have any. Defendants' argument was a simple one: as a matter of law, this image is not child pornography" as federal law defines that term. There is a six-factor test that courts have to consider when forced to make such a decision, or another way to describe that might be six reasons that you don't want to be a federal judge after all so you don't have to think about that. And I'm not going to discuss them either, except to say that nudity is the only factor that the court found fits this image. One out of six is a failing grade.
Other circumstances were also relevant, the court held, such as Elden's parents being present at the time; that he has since, for many years, embraced and financially benefitted from being featured on the album cover"; and that he has the album's name tattooed on his chest-all of which seem to suggest that he himself does not exactly view this as a federal crime.
Motion granted, case dismissed with prejudice. Will there be a second appeal? I can only hope the answer is yes.
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