“Nevermind”: California Man Sues Band 30 Years After Being Featured as a Naked Baby on Iconic Cover

There is a new lawsuit filed in the Eastern District of California against the band Nirvana over its most iconic cover. It could just as well have the title in the caption: “Nevermind.” The lawsuit was filed by Spencer Elden who was featured on the cover as a naked baby.  He is now claiming that the celebrated cover was child pornography and he is entitled to money: A lot of money. Indeed, the lawsuit has a greater appetite than authority in seeking such damages thirty years after the album was released.The album cover showed Spencer Elden as a baby underwater in a swimming pool with his genitalia exposed. In the picture was a digitally added dollar bill on a fishing line, leaving the impression that he was trying to grab the dollar.

Elden has celebrated the anniversary of the album through the years at events and even posed as an adult (in a swimsuit) to reproduce the shot.  He even reportedly has “Nevermind” tattooed on his chest. Now however he has denounced the image as “child porn” and demands damages for his harm. Indeed, his complaint states that the late Kurt Cobain “chose the image depicting Spencer—like a sex worker— 14 grabbing for a dollar bill that is positioned dangling from a fishhook in front of his nude body with his penis explicitly displayed.”

The complaint ignores the obvious artistic value of the image. Instead, it charges that

“Defendants used child pornography depicting Spencer as an essential element of a record promotion scheme commonly utilized in the music industry to get attention, wherein album covers posed children in a sexually provocative manner to gain notoriety, drive sales, and garner media attention, and critical reviews.”

The case is brought under statutes like 18 U.S.C. 2255, “Civil Remedy for Personal Injuries,” which provides that any person who is a victim of a violation of child pornography may recover the actual damages or liquidated damages in the amount of $150,000 per victim, and reasonable attorney’s fees.

Civil and statutory claims can be curtailed by constitutional limitations. This is such a case in my view. Liability would sharply abridge free speech in the use of nudity for artistic and expressive purposes.

In 2002, the U.S. Supreme Court ruled against a provision of federal law that banned computer simulations and virtual pornography under the first amendment. In Ashcroft v. The Free Speech Coalition, Justice Kennedy in a 6-3 decision found that the Child Pornography Prevention Act of 1996 was “overbroad” and swept within its prohibitions many valuable and artistic works.

“Pictures of what appear to be a 17-year-old engaging in sexually explicit activity do not in every case contravene community standards . . . The (Act) also prohibits speech having serious redeeming value, proscribing the visual depiction of an idea — that of teenagers engaging in sexual activity — that is a fact of modern society and has been a theme in art and literature for centuries.”

Likewise, areas like defamation have been limited by the First Amendment. In New York Times v. Sullivan. the Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. As such, public officials and public figures must show either actual knowledge of its falsity or a reckless disregard of the truth.

Images of naked bodies have been featured in art since the earliest artistic periods from images of the baby Jesus to cherubs to realistic imagery. These are not depictions for prurient appeal.  The notion that this is meant to make the baby look like a sex worker is ridiculous, but even if it were true, it might not overcome a claim of artistic value.

The family was paid for the photo and Spencer has made comments that suggest that his interest may not be purely monetary. In a Time magazine article on the album’s 25th anniversary, Elden, is quoted as saying he was “a little upset for a bit … you feel like you’re famous for nothing, but you didn’t really do anything but their album.” He added that while the cover was brilliant “It’s hard not to get upset when you hear how much money was involved… [When] I go to a baseball game and think about it: ‘Man, everybody at this baseball game has probably seen my little baby penis,’ I feel like I got part of my human rights revoked.”

In my view, the case is not only lacking legal merit but would pose a serious threat to artistic expression under the First Amendment.

This does not “smell like teen spirit” as much as summary judgment.

Here is the complaint: Elden v. Nirvana

28 thoughts on ““Nevermind”: California Man Sues Band 30 Years After Being Featured as a Naked Baby on Iconic Cover”

  1. Totally with you on this, Turley. Total infringement on 1st amendment and artistic freedom. Not that I don’t feel bad for the guy as he realizes maybe the most important he ever did, or is going to do, amounts to being on the cover of a commercially successful album though. Perhaps he can take solace in the fact many labor in the music industry both as talent and in production who never achieve even the fame Elden has despite putting much more work into it. A nd it always come down to living a day at a time, never knowing for sure when the next big even will occur as long as we’re putting our time and work into it…

    Short of that, we get this quote which is just sheer poetry…

    ““It’s hard not to get upset when you hear how much money was involved… [When] I go to a baseball game and think about it: ‘Man, everybody at this baseball game has probably seen my little baby penis,’ I feel like I got part of my human rights revoked.””

    eb

  2. Interesting. But, it seems that there is another issue here. If the family got paid for the photo, means, that an informed consent had been granted here. But, not the baby had given it, for he was lacking competence of course, legal competence. Now, his family or parents, have or had at the time, duty of care, not to act on his behalf, in manner, that would harm him. If indeed, he needs to sue them also. Not really Nirvana and the rests (although possible somehow, for they new at the time, that he is a baby, lacking legal competence or whatever competence for giving consent for it).

    Thanks

  3. Jonathan Turley what you failed to mention in your article was the fact that Geffen Records, Nirvana, their representatives, or the photographer ever got a Model Release form which is always needed in a commercial venture concerning photos containing someone’s likeness. This would have gave Nirvana and Geffen the permission to use the photo for the cover. The dad was only paid $200 cash by the photographer to take the image and nothing was put in writing and no permission was ever given to use the photo on the album cover.

    I’m a published Music Photographer and I’ve had my images on a few Album covers. I know how important these Release forms are.Title 17 chapter 2 of US Copyright law gives me rights to my images, but that doesn’t give me the right to use my images that contain peoples likeness for commercial ventures without a signed release form, stating exactly what the images are going to be used for and that said model/person agrees to it. The Band, Photographer, and Geffen Records failed to obtain any release form giving them permission to use the image for a commercial venture and I think he has all the right to sue them and most likely will win this case.

  4. Parents should not publish photos of their children with their genitalia showing, because later they might be teased or embarrassed about it. Plus there are the weirdos. It’s not just about what we think is cute, it’s how they’re going to feel about it later.

    Most of us know people who have cringed when the infamous naked baby pictures get taken out at family reunions or the like.

    This reminds me of one of the reasons why I was angry at Apple deciding they were going to use an algorithm to comb through everyone’s photos, flagging suspect photos for a person to review. I took lots of photos of baby’s first bath, etc, but I deliberately never posted them. I sure as heck don’t want some strange guy checking out my baby’s first diaper change.

    I don’t think this lawsuit is right. It was his parents who gave their permission, and were paid. Perhaps he could get the word out that naked kids in advertising, marketing, or graphic arts is generally a bad idea.

  5. The “baby” also recreated the picture in 2016….and thought it was funny. Nothing like money to make people crazier.

    1. Giving him the benefit of the doubt and assuming that he is sincere, it shows how obsessing over a matter can distort its relative importance in one’s mind. Cancel culture similarly takes tiny, evanescent events or statements and latches onto them, completely inflating their importance within the incessant flow of experience until they may even seem to be matters of life and death.

  6. I don’t have much of an opinion about the merits of the case. Turley highlighted that the parents were paid, it’s clear the baby couldn’t have legally given consent. Just maybe using naked children to market products isn’t the best of ideas.

    1. “it’s clear the baby couldn’t have legally given consent”
      ***
      Not that clear. Guardians can give consent for minors and parents are natural guardians.

      1. The baby couldn’t have and didn’t give consent. There is no making that an untrue statement. Maybe the laws then allowed someone else to permit it. I don’t know. Can a guardian legally give consent to an illegal activity? Post that same picture on Facebook in 2021 and see what happens? You can’t know for someone else whether they were damaged. Neither can I. I do know the baby didn’t give consent.

      1. “Naked kids in advertising is not a good idea.”

        I agree.

        I would put the Nirvana cover in the art category more than the advertising category, though.

        That said, I do think there are limits to what is okay even in art when it comes to kids. In this case, I had no idea who that baby was til today. That baby was just ‘the baby’ on the Nirvana cover. He looked like all the other Huggies and Pampers babies, except he lacked a diaper.

  7. They should settle it for $1.00. ( Before it gets tossed out.) Imagine the good press of the kid catching the $1.

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