Nirvana's "Nevermind" Baby Sues Over Cover Image

Spencer Elden has filed suit claiming the iconic album cover image was exploitative and constitutes child pornography.

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Variety reports:

Spencer Elden, the man whose unusual baby portrait was used for one of the most recognizable album covers of all time, Nirvana's "Nevermind," filed a lawsuit Tuesday alleging that the nude image constituted child pornography.

The album cover depicts Elden underwater in a swimming pool as a then-infant with his genitalia exposed. The image has generally been understood as a statement on capitalism, as it includes the digital imposition of a dollar bill on a fishhook that the baby appears to be enthusiastically swimming toward. Non-sexualized nude photos of infants are generally not considered child pornography under law. . . .

"Defendants intentionally commercially marketed Spencer's child pornography and leveraged the shocking nature of his image to promote themselves and their music at his expense," reads the lawsuit, filed in the U.S. District Court's central district of California and obtained by Variety. "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."

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  1. Further evidence that people (and the attorneys that abet them) are terrible. Just in general.

    Anyone who thinks that the album was popular because of the cover … was clearly an infant at the time.

    I hate these types of cash grabs. It looks like Spencer Elden must have been unable to continue to parlay that one photo into fame, you know, after he used it to work with Shepard Fairey.

    1. Amen. This is an obvious bogus claim.

    2. Was the plaintiff compensated at the time it was used? Is there a contract for the court to review?

      The human body, including genitalia, is not obscene. Furthermore, I was more disturbed, disconcerted, and repulsed by the image, the opposite of sexual arousal. Only some of the strange, disturbed people here could find this image to be sexual.

      If this claim gets past first pleading, the judge should be removed. It is high time to start firing judges for their awful judgement, and not for some trivial collateral corruption.

      1. If the plaintiff was compensated by the original contract, he should pay all costs from personal assets, as should any of his lawyers.

        1. From the article in Variety:

          What was a constant, in the past as now, is that Elden has said he was never compensated for the photo beyond the $200 his parents were paid for it on the day of the shoot. In previous interviews, he’s said he tried to get in touch with Grohl and Novoselic, on a friendly basis, but never got a reply. A possibly new contention in the lawsuit is that Elden’s parents never even signed paperwork allowing any use of the image.

          “Neither Spencer nor his legal guardians ever signed a release authorizing the use of any images of Spencer or of his likeness, and certainly not of commercial child pornography depicting him,” reads the suit.

          1. If there was no model release form signed at the time that would be actionable, however I don’t know if its actionable 30 years later (parents and child obviously knew about the album cover since shortly after its release) especially considering Elden has done multiple recreations of the shot and personally profited from the notoriety that came with it

            Hopefully the court also takes note of the timing, which seems obvious to coincide with the album’s 30 year anniversary next month

          2. “‘Neither Spencer nor his legal guardians ever signed a release authorizing the use of any images of Spencer or of his likeness, and certainly not of commercial child pornography depicting him,’ reads the suit.”

            Makes you wonder if there is actual commercial child pornography of him, out there somewhere

  2. This lawsuit is such an insult to intelligence I’m going to call it the tiny kraken

    1. It completely is. I assume it is a cashgrab- attempt to wring some dollars out of the defendants.

      ….but, by making the child pornography allegations, the attorney may have gone too far. Because no one is going to want to settle that, and they’ll likely fight it on principle.

      …I know I would.

      1. Kobain’s estate can probably get away with settling. For the surviving band members, a settlement would be tantamount to admitting a federal felony. Not going to happen.

        1. That’s nonsense. The likelihood of this image being legally identified as child pornography would first have to establish that it is pornography. It is not.

          1. Good lord, the grammar of that sentence is terrible. It’s like I changed the point halfway through.

  3. This just in: Those photos parents took of their nude infants are apparently child pornography. Most of country surprised.

    1. Non-sexualized images of naked infants are exempt from being considered child pornography, however in this case they are alleging the addition of the dollar bill gives the appearance that the baby is a sex worker, and thus causes it to become a sexualized image

      I’ve heard plenty of interpretations of the album cover over the years, but this one is definitely unique

      1. The baby represents innocent life. The baby is in water because water is a classical symbol of life and survival. The dollar bill meant corruption of that life.

        I dont understand how any other interpretation is plausible.

        1. The baby represents a baby, swimming in water because swimming in anything else would be too messy.

      2. Yet even that unique interpretation is a non-starter, because the original photo doesn’t include a dollar bill in it. That was added to the photo afterwards. ( https://milanote.com/the-work/the-designer-of-nirvanas-nevermind-album-cover )

        If the original photo wasn’t pornography, a simple edit like adding a dollar bill to it shouldn’t make it become pornography. (I’m not saying there’s no possible edit of a photograph that would turn a non-pornographic picture into a pornographic picture, but i’d think it would need to manipulate the person itself, not just add an ancillary object).

        I gladly grant the your implication that their interpretation is pretty weak sauce too. But even that interpretation seems like total nonsense, not simply ‘unique’.

  4. Everyone is looking for a quick pay day

    1. Where here “quick” means “after 30 years or so”.

  5. I grew up in an era in which my high school swim team swam nude, and occasionally someone would take pictures, some of which I still have. Child pornography my foot. If I get busted for possession of child porn, does the fact that I’m one of the children constitute a defense?

    Some people really need to get a life.

    1. In which country and era might that be?

      1. Florida 1950s. I don’t think nude swimming ended until the 1970s; I was on the board of directors of a local YMCA that kept it until 1975. People younger than that have no idea the vast sea change the culture has taken since then.

        1. Yeah, I can remember bathing with my sister back in the 60’s, to conserve water. The idea that sexualizing everything made us less puritanical is something of a joke, it seems to have done the opposite.

          1. My sister was bathing my niece and nephew together just a few years ago, and not even to conserve water, just to save some time and effort

        2. I would say that people who can’t remember the 1990’s have no idea how much the culture has changed, let alone the 1970’s. For instance explaining what actual communism was like in the USSR to someone and they look at you like you are just lying.

          The left tried hard to fully implement their cultural-marxist agenda in the early 90’s, but at the time, there was enough of an America left to push it back. They had to wait until the 2010’s to move the ball again. But here we are and the only lesson you can learn from that is about the nature of the enemy. When they think they can do no wrong, they will never stop, until they are stopped for good.

          1. No kidding. Try telling somebody used to modern gun control laws that in the 60’s you could send your minor child to the store to buy you a pack of cigarettes and a box of ammo. Or that people routinely carried firearms on airplanes in carry on baggage. Or that anti-tank guns could be bought mail order out of ads in the backs of magazines.

            The 60’s were a world people born in the 90’s can’t imagine, and if you try to tell them about it, they think you’re lying.

          2. “The left tried hard to fully implement their cultural-marxist agenda in the early 90’s, but at the time, there was enough of an America left to push it back. They had to wait until the 2010’s to move the ball again.”

            Such a vivid imagination you have!

      2. Many professional swimmers will practice in the buff (most likely in the privacy of an exclusive club or their home). I was also once on a deep sea dive boat with some European who were going snorkeling. They stripped down naked without hesitation (men and women) and jumped in with just the mask and snorkel. Me being an American not used to the custom asked why and was told “you don’t shower in your underwear do you?”

        Same with a general gym, spa, locker room experience in the 2010’s in Eastern Europe. You could “rent” a swimsuit if you wanted, but they looked at you like why were you wasting good money. Facilities were separate but you could just look over the waist high divider and see everything. Some people wore the idea of a bathing suit but when they got into the sauna, pool, or whatever it was sitting on the chair next to the towel.

        I remember when Europe was considered to be forward thinking because of their casual relationship to nudity. America was supposedly “backward” because of our “puritan” practices. Now we just have another slate of puritan style sexual moralities in exchange for the old set. There was no “liberation” just the “oppressed” becoming the new “oppressor”.

        1. In some parts of Russia its considered rude (and even a little gross) to *not* be naked in the sauna

    2. re: “does the fact that I’m one of the children constitute a defense?”

      Under US law and precedent, the answer is unambiguously no. Many minors have been charged with child pornography for taking nude (or even just partially nude) selfies.

      That fact is one of the strongest lines of evidence that our laws about sex are very far off the rails.

    3. Krychek_2 : Some people really need to get a life.

      In the linked article there’s this :

      “In previous interviews, he’s said he tried to get in touch with Grohl and Novoselic, on a friendly basis, but never got a reply”

      And this:

      “I got a little upset for a bit” as he grew older. “I was trying to reach out to these people. I never met anybody. I didn’t get a call or email”

      I’m betting if someone had sent this sad sack an autographed picture or penned a short note, this lawsuit wouldn’t exist.

  6. Also, how is this suit not barred by the statute of limitations? That cover is 30 years old.

    1. I assume because they still sell the album.

    2. Plus, it could be that the limitations period didn’t run until the plaintiff hit the age of majority.

      1. Which would have been more than 12 years ago.

    3. Most states have either rescinded or absurdly extended their statutes of limitations for anything hinting at “sex” crimes.

      1. Also child abuse more generally.

        1. Although, letting a child swim is not generally abuse.

  7. Next up the original Blind Faith cover.

    1. That cover is even mentioned in the Complaint. No mention of Led Zeppelin’s Houses of the Holy, though.

    2. Not to mention The Scorpions Virgin Killer.

  8. Spencer wants more of the profits than he has already received, if any. He’s not embarrassed by his little willy showing. Now watch the judge goose-egg him.

  9. I remember when that CD was released and it was a huge controversy. Lots of screaming about censorship and freedom of speech. Several stores even refused to carry the album unless it even had a little “censored” sticker on it.

    The more things change, the more they stay the same.

    1. Cobain wanted any sticker used to censor it to say “If you’re offended this by this you must be a closet pedophile”

      1. This made me recall that once upon a time I owned said CD. So, I just went through a box of old stuff and low and behold there it is complete with the censored sticker. Don’t remember exactly purchasing this, but it has a partial price sticker on the back from an old independent “record store” that I used to patronize on occasion. That took me back….having to go to a store to buy your music….

        1. My copy came from Columbia House, so no sticker, but I recall seeing ones with stickers at the store. They were always on the outside though, on the cellophane, so as soon as you unwrapped it no more censoring lol

          1. Columbia House…..that takes me back. Get 10 CD’s for a buck! marketing really sticks with you. (It was a good deal if you didn’t mind the “club” aspect of ordering your music.)

            My album has the sticker on the inside cover which is interesting. I seem to recall it was sold in different versions of censorship to try to get it in as many stores as possible. Looks like their might have been a run that put in inside the outer wrapping.

            1. Walmart still will not carry “parental advisory” labeled music. Which is a pretty good argument to not label.

  10. Anyone sick enough to be turned on by that picture has probably already gotten himself in the penitentiary for something unspeakable (unless he’s been admitted to a mental institution).

  11. The difference between the censors of today and the 1990’s, was at least in the 90’s some people on the right had genuine shame that censorship was being pushed. There was a sizable portion of the right that was anti-censorship then and would go on the record as such. This simply does not exist today, or if someone on the left challenges the current regime they get cancelled.

    One reason the left is so successful is that no one there has any shame in what they do. Keep it this in mind when dealing with a leftist.

    1. “The difference between the censors of today and the 1990’s, was at least in the 90’s some people on the right had genuine shame that censorship was being pushed.”

      You and I have different recollections of the Meese Report

  12. Superman: The Movie, child porn.

    An asteroid cannot destroy this planet fast enough.

  13. I heard about this on a classic rock radio station and the consensus seemed to be, if the guy just asked for a couple hundred thousand, whatever. The band can pay him.

    But a few million and allegations of pornography? Fuck no. Not to mention this is after several members have passed and 30 years later … like sure, he was a baby at the time, but surely if he felt violated he could have sued when he was around 20?

    1. Apparently as he gets older he’s finding it harder to live of the fame and re-enactment fees so this is his hail mary.

    2. ” if the guy just asked for a couple hundred thousand, whatever. The band can pay him.”

      Mr. Cobain had to go begging David Geffen when he wanted to buy leadbelly’s guitar. He talked about THAT during the “unplugged” performance.

  14. Wouldn’t this also be the wrong venue for an allegation of child pornography? Since that’s a criminal matter it seems out of place in a civil filing.

    I assume it’s done to cover for the fact that he’s claiming insufficient compensation 30 years after the fact, an hoping to shock the plaintiffs into settling. As another commenter noted, I think its likely to have the opposite effect and cause them to fight it on principle.

    But lets say there is a finding that it constitutes child pornography, what would that mean for the millions of people who own the album, or other artwork based on the cover? I have MP3s with the cover art embedded in them, and I’m sure its stored in Amazon Music and iTunes caches deep in the bowels of my computer as well. Would a pornography finding meaning it has to be scrubbed from existence lest we all become felons?

    1. Under federal law you can get liquidated damages of $150,000 for a picture of you that counts as criminal child pornography.

      1. You still would have to get around the fact that the photo is not pornography.

  15. Child porn he claims? Well then the purveyor of such, his parents, should certainly come under scrutiny of the authorities. Unfair for him to selectively cast aspersions. It was his parents who handed him over to the demonic cult of ‘rock and roll’.

    1. His argument is that the photo in and of itself is not pornographic, but the addition of the dollar bill (which was added later and not part of the original photo) is what makes it pornographic. So his parents are off the hook

      1. That’s a pretty poor argument.

  16. “Spencer Elden, the man whose unusual baby portrait was used for one of the most recognizable album covers of all time, Nirvana’s “Nevermind,” filed a lawsuit Tuesday alleging that the nude image constituted child pornography.”

    Then he should be suing the photographer. Or is he claiming that Nirvana fans are coming round to his house, stripping him naked and throwing him into the pool?

  17. I suggest he get ahold of the album he’s on and have a listen to “Polly”.

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