Jackson Walker secured a complete victory for renowned photographer Kirk Weddle, with the U.S. District Court for the Central District of California granting summary judgment on September 30, 2025, and holding that Nirvana’s Nevermind album cover is not child pornography as a matter of law. The court dismissed the case with prejudice.

Jackson Walker partners Joshua A. Romero and Emilio B. Nicolas led the defense for Mr. Weddle alongside California counsel at Kendall Brill & Kelly LLP.

“This ruling confirms what we have said from the beginning: Kirk Weddle’s world-renowned work on Nirvana’s Nevermind cover is not child pornography,” said Josh Romero. “This decision reaffirms the artistic and cultural significance of the image and vindicates our client.”

Emilio Nicolas added: “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.”

Background

The lawsuit was originally filed nearly 30 years after the release of Nirvana’s Nevermind. The album’s iconic cover pictured a swimming baby grabbing for a dollar bill on a fishhook. Spencer Elden, the plaintiff and now-adult baby pictured on the cover, alleged that the image was child pornography, and that, as a result, he was entitled to money damages and an injunction prohibiting future sales, marketing, and distribution of the image. In 2022, the district court dismissed the case on statute of limitations grounds, but the Ninth Circuit later reversed that decision, sending the case back for further proceedings. Jackson Walker’s team then moved for summary judgment, arguing that the image does not meet the legal definition of child pornography.

Court’s Ruling

The court conducted a thorough analysis under federal law and the “Dost factors,” which guide courts in determining whether a visual depiction of a minor constitutes child pornography. The court concluded that, aside from the subject’s nudity, the relevant legal factors and evidence did not support classifying the image as child pornography. The pose, focal point, setting, and context were not sexual, and the image “was intended and understood to embody a critique of the tension between art and capitalism”—not to elicit a sexual response. The court wrote: “[O]ther than the fact that plaintiff was nude on the album cover, no other Dost factor comes close to bringing the image within the ambit of the child pornography statute. . . . 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 lasciviousness.”

Final Judgment

The court entered final judgment dismissing the case with prejudice on September 30, 2025. Jackson Walker is fully prepared to continue its vigorous defense of Kirk Weddle should the plaintiff appeal.

The case is Spencer Elden v. Nirvana, L.L.C., et al., No. CV 21-6836 FMO (AGRx) (C.D. Cal.). For more information about this lawsuit, view recent articles by The Texas Lawbook, Billboard, and Bloomberg Law (subscriptions may be required).

About Our Team

Joshua A. Romero is a trial lawyer and the Chair of Jackson Walker’s Litigation practice group in Austin. Josh has represented both plaintiffs and defendants in high-stakes cases across the country in complex commercial litigation, bad-faith insurance claims, trade-secret cases, whistleblower and qui tam cases, and First Amendment litigation. Outside of his practice, he has served on the Texas Supreme Court Rules Committee and the Hispanic Bar Association of Austin Board of Directors. Josh has been repeatedly recognized in the Chambers USA Guide, The Best Lawyers in America, Super Lawyers by Thomson Reuters, Lawdragon’s “500 Leading Litigators in America”, and Austin Monthly’s “Top Attorneys” list.

Emilio B. Nicolas is a copyright, trademark, and media rights attorney in Jackson Walker’s Austin office. His practice involves litigation and transactional work, including IP and media rights protection, enforcement, and licensing for companies in the entertainment, media, and technology industries. His subject matter experience includes copyrights, trademarks and unfair competition, rights of privacy and publicity, and free speech. Emilio serves on the Board of Directors for Austin PBS (KLRU-TV) and previously served on the ABA’s Intellectual Property Litigation Committee and as a Trustee of the Copyright Society. Emilio has been recognized by The Best Lawyers in America as a Lawyer of the Year – Austin (2024) for Copyright Law, in Lawdragon’s lists of “The 500 Leading Litigators in America” and “The 500 Leading Global Entertainment, Sports & Media Lawyers,” and by Austin Monthly as one of “Austin’s Top Attorneys” for Intellectual Property Rights.

Founded in 1887, Jackson Walker is the largest firm in Texas with over 500 attorneys across six offices, 30% of whom practice litigation. Our firm has garnered significant accolades, including as an Intimidating Opponent in BTI Consulting Group’s list of the firms “Most Feared in Litigation,” as a top Texas firm in the area of Litigation: General Commercial in the recently released Chambers USA Guide, and among the Best Law Firms® by Best Lawyers with 26 national and 140 metropolitan rankings in the 2025 edition. To explore our firm’s experience helping clients across the entertainment industry to solve their business challenges, protect their creative works, and defend their legal rights, visit the Entertainment, Digital, & Sports practice page.