It wasn't child porn when it was created, but times change. I have noticed that the BBC has started censoring the image (QI) whereas British productions in the past have not (TheBoatThatRocked). Jurisprudence changes. Since Nevermind was published, even nudity is no longer a requirement for child porn in the US. While I don't agree, I don't think the question is the total slam dunk it was decades ago.
It still isn't child porn. There is nothing sexual or obscene about this picture and the purpose isn't so, either. There are many, many works of arts, including religious ones, in which infants are depicted in the same way.
The term is being used for PR and sensationalistic purposes in relation to a civil lawsuit.
Yes; I'm quite confident that this would never be an album cover today. But you can't generally sue of the basis of some past activity that was legal at the time even if it's not today.
But it is being republished daily today. When material is deemed illegal, new copies cannot be created/sold today on the basis that they were legal yesterday.
There would probably be a pretty high bar to get this declared illegal as opposed to sufficiently adjacent as to be controversial on something like an album cover. It pretty clearly does not meet the DOJ definition although other countries, perhaps including the UK, may have stricter/different standards. (And it was and would be obviously illegal to distribute in some countries.)
ADDED: And, no, I would not be putting this album cover in my carry-on to get on a plane. I don't really expect a random TSA agent to be up on legal details of what photography is OK and what isn't.
Yeah. Strip away the context of it being an album cover that's been out for a long time and I wouldn't like to be the person trying to argue with law enforcement or a judge why that photo/artwork is perfectly OK.
