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Nearly 30 years ago, Nirvana released its groundbreaking album, "Nevermind." The grunge masterpiece knocked hair bands off the top of the rock mountain with a new, nihilistic message for the teens of Generation X.
"Nevermind" also featured one of the most iconic album covers of all time. In the midst of the great moral panic over music poisoning the minds of our youths, there was 4-month-old Spencer Elden, as naked as the day he came into this world, swimming underwater after a dollar bill attached to a fishhook.
Now 30 years old, Elden seems to have some regrets over his role in music history. In a lawsuit filed in the U.S. District Court for the Central District of California, Elden accuses Nirvana and the music industry of child pornography and child exploitation.
The lawsuit seeks at least $150,000 in damages from each of the 15 defendants, which include the members of Nirvana — Kurt Cobain, Krist Novoselic, and Dave Grohl — Cobain's widow Courtney Love, photographer Kirk Weddle, Geffen Records, Warner Records, and MCA Music. It also seeks to have the image altered in further sales of the album.
The suit alleges that the defendants used "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 lawsuit alleges emotional distress, "permanent harm," and "lifelong loss of income-earning capacity." Elden's lawyer Maggie Mabie summed it up succinctly: "He hasn't met anyone who hasn't seen his genitalia. His privacy is worthless to the world."
Elden's parents originally received $200 for the photo from Weddle, a friend of theirs, after Cobain was allegedly inspired by photos of underwater childbirth, deemed far too obscene for the album's cover.
Over the years, Elden participated in multiple recreations of the photo, wearing shorts each time. He told NPR in 2008, "Quite a few people in the world have seen my penis. So that's kinda cool." He was a teenager at the time.
A 2016 interview with GQ, however, indicated a change in feelings about the situation: "What if I wasn't OK with my freaking penis being shown to everybody? I didn't really have a choice," he said.
Entertainment litigation attorney Bryan Sullivan called the lawsuit "ridiculous" and cast doubt on the lawsuit's claim that Elden's parents never consented to the photo being used on the "Nevermind" cover.
"As to the right of privacy, you can waive it by your actions or by his parents' actions in allowing him to be photographed," he said. Other attorneys in the industry added that Elden's participation in recreations of the photo will hurt his chances.
But Elden's attorneys argue the lawsuit will hinge on whether the photo actually is child pornography. That will mean applying former U.S. Supreme Court Justice Potter Stewart's famous obscenity test stemming from 1964's Jacobellis v. Ohio: "I know it when I see it."
The lawsuit alleges that the photograph of Elden depicted a "lascivious" display of his genitalia. And Catholic University law professor Mary Graw Leary says federal law will give the judge broad discretion in determining whether that image actually is pornographic.
"We don't want to be in a position where we're only going to consider one case criminal because in the other, the child didn't think it was a big deal at the time," she said.
Indeed, this lawsuit could also hinge on how our attitudes toward consent have changed in the 30 years since "Nevermind" was released.
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
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