The Recording Industry Association Of America has intervened in the ongoing legal dispute over the artwork for Nirvana’s 1991 ‘Nevermind’ album. Spencer Elden, who appears as a baby swimming underwater in the artwork, went legal in 2021 claiming that, because he was nude in the image, the band and their label breached US laws against child pornography.
In its amicus brief filed in support of the band and label, the RIAA says this is a “far-reaching theory” of legal liability that goes against free speech protections under American law, and is something that “cannot be reconciled” with the all important First Amendment of the US Constitution.
Any decision in court that sided with Elden would, adds the record industry trade body, have “a serious chilling effect on the recording industry and on artistic expression more generally”.
The ‘Nevermind’ album cover is “one of the most celebrated visual works in the history of album art design”, the RIAA continues. Elden’s lawsuit claims that the artwork “depicts a minor engaging in ‘sexually explicit conduct’”, but that’s just not true, the RIAA insists.
While First Amendment free speech rights obviously do not extend to images of child abuse, the image on the ‘Nevermind’ album does not “meet the definition of ‘sexually explicit conduct’” under the relevant US laws, the RIAA says.
Expanding on that argument, it explains that the image used in the artwork is “plainly not obscene”, because it “does not appeal to ‘prurient interest’”, is not “patently offensive in light of community standards”, and has “serious artistic value”.
The photo is “not the product of sexual abuse”, the RIAA adds, “does not focus” on the baby Elden’s genitalia, does not “suggest sexual coyness or willingness to engage in sexual activity”, and “was not designed to elicit a sexual response in the viewer”.
Nirvana and their label, Universal Music, have made arguments of this kind ever since Elden filed his lawsuit, although initially the focus of their legal response was on the statute of limitations. They argued that, under the relevant US laws, Elden should have filed his lawsuit within ten years of his eighteenth birthday, which made 2019 the deadline.
A district court initially agreed with that argument and dismissed the case on statute of limitation grounds. However, Elden’s lawyers countered that, because the band and their label continue to manufacture copies of ‘Nevermind’ with the original artwork, the alleged harm continues to be caused, meaning the statute of limitations is irrelevant.
The Ninth Circuit Appeals court agreed with that position, meaning the whole dispute returned to the district court, with the focus now on Elden’s core claim that publication of the ‘Nevermind’ artwork was illegal on the basis it features ‘sexually explicit conduct’ involving a minor.
The defendants submitted a motion for summary judgement in their favour last month and, in its new submission, the RIAA urges the court to make that judgement.