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Nevermind That Nirvana Child Pornography Lawsuit, Attorneys Say

Nirvana’s 1991 album cover featuring a naked baby in a pool is now at the center of a debate about the line between art and child pornography. While some seasoned litigators tell THR there’s nothing “a reasonable person would see as sexual about that image,” the lawyer for the man in the photo insists it’s child exploitation material.

Elden’s attorney James Marsh, whose practice focuses on victims of sex abuse, insists permission wasn’t given. “Our understanding is there was no release,” he says. “In a culture in which we are trying to uphold consent as one of the highest values, an image of a child naked that he didn’t consent to should cause people concern.”

Marsh doesn’t think Elden’s past comments are relevant to the key issue: whether the photo is child pornography. To a certain extent, he’s correct. If the court determines the image is child pornography, nothing else matters. If the court determines it isn’t, that’s when the other claims will come into play.

“Hindsight is 2020,” says Marsh, “You can cherry-pick all kinds of things he’s said over the years. He’s also said he felt profoundly humiliated and exposed by this image.”

Marsh disagrees. “I’m not an expert on California law, or California SLAPP law, but for what I understand it only extends to protected speech, and child pornography is not protected speech,” he says. “We vetted this case very carefully over many years before we filed this. We chose to bring this case forward because we have a good-faith belief that this qualifies under the law as child exploitation material.”

Marsh says it’s “mystifying” that the suit is generating criticism and says he’s heard the “you’re not a real victim” narrative for “far too long” in his line of work.

He also tells THR they didn’t send demand letters to the defendants prior to filing the suit, but notes there has been press coverage over the years that his client “tried to reach out to people and has had the door slammed in his face.”

The upcoming 30th anniversary of the album was a catalyst for the complaint, which is embedded below. “We needed to get this done and try to put a stop to the re-issuance prior to the anniversary,” says Marsh, adding that the motivation for choosing this image over another one isn’t being adequately scrutinized.

“Would the album have been as iconic without his penis as it was with it? If it could have, why did they pick the image that displayed it?” Marsh says, pointing to an allegation in the complaint that Cobain wanted to cover the baby’s genitals with a sticker that read “If you’re offended by this, you must be a closet pedophile” if the album cover couldn’t be left uncensored. “We want the sticker on there. That’s what it’s all about. I think Nirvana, given the publicity from this lawsuit, will more than make up for the cost of the sticker.”

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