Is Nirvana baby right to sue for alleged child pornography?


Fact Box

  • American rock band Nirvana released its second album “Nevermind” on September 24, 1991 and sold over 24 million copies worldwide. The album cover features the photographer’s friend’s son, Spencer Elden as a baby swimming in a pool.
  • On Tuesday, August 24, 2021, Elden, now 30, filed a lawsuit against the Nirvana band, estate of Kobain, and others over the naked photograph claiming it as “child pornography” and mentioned his parents never signed a release form. Elden is asking for $150,000 from each of the 17 defendants. 
  • Elden told AP News on Wednesday, August 28, 2021, his reason for filing now is because he “finally has the courage to hold these actors accountable.” He wants all new versions of the album changed, especially if there is a 30th anniversary release.  
  • For each of “Nevermind’s” anniversaries, Elden has recreated the album cover “always wearing swimming trunks.”

Maha (Yes)

Spencer Elden’s claims about Nirvana’s Nevermind album cover equalling child pornography may sound shocking, especially since the cover has been one of the reasons for the album’s success over the past 30 years. However, there may be truth to Elden’s allegations. 

Firstly, the photo in question falls under the description of child pornography under US Federal law. In addition to the visual depiction of sexual conduct involving minors, the legal definition includes images that are sufficiently sexually suggestive. According to a member of Elden’s legal team, the photographer allegedly positioned the camera in a way that made the then-toddler’s genitals seem enlarged. As a result, it ended up becoming the image’s focal point. 

Secondly, the lawsuit emphasizes the lack of a written release. Spencer and his legal guardians never signed to authorize the use of Spencer’s images. The photographer was allegedly casual about the shoot when he called his friend, Spencer’s father, and asked, “Hey Rick, wanna make 200 bucks and throw your kid in the drink?”

Thirdly, Elden’s behavior over the years is very similar to that of 45% of child porn survivors who don’t deny the existence of images or refuse to talk about them. While he has recreated the image while mainly clothed on different anniversaries, there are instances where he claims he felt like “the world’s biggest porn star.”

It may still be early to predict whether the court will rule this image as child porn, especially since juries are unpredictable during provocative and emotional cases. However, if Elden wins the suit, a new precedent will have been set, and similar images won’t be created and circulated casually.

Elizabeth (No)

Spencer Elden’s (the naked ‘Nirvana Baby’ of ‘Nevermind’ fame) lawsuit against the former band for alleged child pornography is frivolous and should be thrown out. It’s clear the 30-year-old Elden is simply money-grubbing. While it’s true his family was not paid much for the shoot, it’s his own parents he should be angry with, not the band. With his being only four months old at the time of the photo, his parents are the ones who agreed to their son being photographed naked in a pool. 

The legal definition of child pornography specifies the child be depicted in a sexually explicit manner. Regardless of Elden’s lawyer attempting to cast it as such, there is and never was any credible conversation about the photo being explicit. And as an infant, Elden is unrecognizable in the photo compared to today. If there were ever grounds for a meaningful lawsuit, it was at the time of release, not immediately before the 30th anniversary of the album. Furthermore, Elden has recreated the shoot multiple times of his own accord. For the 25th, he offered, as a 20-something, to do the shoot naked (thankfully, the photographer declined). He has also detailed how the notoriety enabled him to work with Shepard Fairey and seems unwilling to simply live a life of anonymity. 

Claiming ‘permanent harm’ and ‘extreme and permanent emotional distress,’ as the lawsuit does, is laughable at best, and Elden should consider himself lucky if the remaining former Nirvana members don’t countersue him.

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