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New lawsuit over ‘Nevermind’ album cover poses plenty of interesting questions

By | Published on Thursday 26 August 2021


Legal experts say that a new lawsuit filed by Spencer Elden – who was the nude baby that appears on the famous cover of Nivana’s ‘Nevermind’ album – could raise some very interesting questions regarding what constitutes ‘child pornography’ under US law, and more generally regarding the privacy rights of young children.

Elden filed litigation on Tuesday targeting Nirvana, their label and other people involved in the creation of the artwork for ‘Nevermind’. The lawsuit states that the 1991 album cover “constitutes commercial child pornography” under US law – and that the defendants “knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so”.

The plaintiff was just four months old in 1991 when he was photographed submerged in a swimming pool by photographer Kirk Weddle. The new lawsuit runs through the events that led to that photograph being taken and its subsequent use on the Nirvana album.

Citing Robert Fisher, who designed the artwork, the lawsuit claims that it was Nirvana themselves who came up with the idea of featuring a nude baby on the cover of ‘Nevermind’. Weddle was then commissioned to capture the required images.

“In 1991, Weddle … took explicit photos of Spencer, who was then a four month old baby, in a pool at the Pasadena Aquatic Center in Pasadena, California”, the legal filing states. “Weddle took a series of sexually graphic nude photographs of Spencer. To ensure the album cover would trigger a visceral sexual response from the viewer, Weddle activated Spencer’s ‘gag reflex’ before throwing him underwater in poses highlighting and emphasising Spencer’s exposed genitals”.

It was then Kurt Cobain, it’s alleged, who chose the version of the photo of Elden in which it was made to look like the child was reaching for a dollar bill. Says the lawsuit: “Cobain chose the image depicting Spencer – like a sex worker – grabbing for a dollar bill that is positioned dangling from a fishhook in front of his nude body with his penis explicitly displayed”.

None of this was approved by Elden’s legal guardians at the time time, the lawsuit then claims. “Neither Spencer nor his legal guardians ever signed a release authorising the use of any images of Spencer or of his likeness”, it states, “and certainly not of commercial child pornography depicting him”.

The creation of the image, it’s use on the ‘Nevermind’ cover, and the subsequent exploitation of the artwork over the following three decades has, the lawsuit then claims, caused Elden extreme and permanent emotional distress.

“Spencer has been and will continue to suffer personal injury by the distribution and possession of child pornography depicting him by persons including the defendants”, the lawsuit says.

It adds: “The permanent harm he has proximately suffered includes but is not limited to extreme and permanent emotional distress with physical manifestations, interference with his normal development and educational progress, lifelong loss of income earning capacity, loss of past and future wages, past and future expenses for medical and psychological treatment, loss of enjoyment of life, and other losses to be described and proven at trial of this matter”.

There are various interesting elements to this case, but the most obvious question is whether or not Elden being naked in the photo in itself constitutes “commercial child pornography”.

The lawsuit tackles that question head on, citing both the law and legal precedent in this domain. Crucially, the case for the photo being defined as commercial child pornography is built of aspects of the image beyond just the nudity itself.

“The album ‘Nevermind’ depicts a lascivious exhibition of Spencer’s penis and genital area”, the lawsuit states. Meanwhile, the inclusion of the dollar bill – and the claim that the final artwork was made to look like Elden was grabbing at the money “like a sex worker” – will also likely factor into the child pornography claim. Even if that’s not the concept that Nirvana and Spencer were trying to communicate.

In its analysis of the case, Law360 quotes law professor Amy Adler, who is an expert on the regulation of pornography. She asks: “What constitutes ‘lascivious exhibition of the genitals’? How does it differ from an innocent photograph of a naked child, such as a family photograph of a child in the bathtub, which should be protected?”

More specifically regarding the ‘Nevermind’ cover, she adds: “It is a disturbing image, but I would argue that what makes it disturbing is that it’s a picture of an innocent baby swimming toward money. The picture has been commonly understood as a critique of capitalism rather than through the lens of sexuality”.

Beyond the technicalities of what constitutes child pornography under US law, Nirvana’s defence may also rely on the fact that, at various points in the past, Elden himself has talked about his appearance on the famous album cover in positive terms. And, indeed, he has recreated the image multiple times over the years, albeit wearing shorts.

That said, in a 2016 interview with Time magazine he did say that he had found himself getting a “little upset” about the photo as he aged. “I just woke up already being a part of this huge project”, he added in that interview. “It’s pretty difficult – you feel like you’re famous for nothing”.

Although ‘Nevermind’ was released long before the social media age, the lawsuit notes that that hasn’t stopped the artwork from being exploited digitally in more recent years, including as a Snapchat filter. And another legal expert who spoke to Law360 said that the litigation could also put the spotlight on some other more modern concerns.

Law professor Stacey Steinberg – an expert on child privacy rights – states: “I think this is an interesting case and I will follow it closely. Should a child be able to have control over his or her digital footprint? While this image was taken long before social media, many of today’s children are growing up with their images shared online”.

Meanwhile, in more practical matters, Elden is seeking damages of at least $150,000 from each of the defendants.