It’s one the most memorable and evocative images of the ’90s. It’s now being called child porn.
We all recognize Nirvana’s Nevermind album cover. The iconic image of an innocent baby swimming towards a dollar bill at the end of a fishhook has been around for 30 years and is one of the most well-known album covers.
Now, three decades later, that baby is all grown-up — and Spencer Elden doesn’t feel proud to be a part of rock and rolling history. According to the lawsuit that he filed Tuesday, this is what he feels.
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The California native is now 30 years old and is suing the remaining members of the band, Krist Novoselic and Dave Grohl, as well the managers of Kurt Cobain’s estate — including Courtney Love, Kirk Weddle, the photographer, DGC Records and Geffen Records. The suit names 15 defendants.
Spencer claims that the image was child pornography and that all of these people have been making a living off it for decades. Variety obtained the suit. It reads:
“Defendants deliberately commercially marketed Spencer’s child pornography and leveraged his shocking nature to promote themselves and/or their music at his expense…Defendants used Spencer’s child pornography as an essential part of a record promotion scheme frequently used in the music industry to attract attention. In this scheme, album covers posed Spencer in a sexually provocative way to gain notoriety and drive sales, garner media attention and get critical reviews.”
Robert Y. Lewis, one of his lawyers, argued that the child’s need for money makes him look like a sex worker — which he claims would make it child porn. Huh. The suit suggests that Cobain is a particular offender because of his collaboration with the photographer.
“Weddle took a series sexually explicit nude photos of Spencer. Weddle activated Spencer’s ‘gag reflex’ to ensure that the album cover would elicit a visceral sexual response. Then, Weddle threw Spencer underwater in poses that highlighted and emphasise Spencer’s exposed genitals. To add to the scene, Fisher bought fishhooks from a tackle and bait shop. In a short time span, at least one or two film cartridges were exposed. This included at least 40 to 50 different images of Spencer. Cobain chose the image of Spencer, who is depicted as a sex worker, grabbing for a dollar bill. He is positioned dangling from an iron fishhook in front his nude body with his penis clearly displayed.
Critics of the suit bet that child porn will prove difficult to prove in court of law. The legal definition of pornography usually includes some form of “intent sexually stimulate” the viewer. Given that Nevermind has been purchased by over 30 million people, it’s hard to argue that all of us are involved. Although lawyers can use the term “sexually provocative”, it would mean that a depiction or representation of a nude child would be considered sexual. This would be something many would disagree with, from Anne Geddes calendar owners to tourists who visit Sistine Chapel to Kurt Cobain himself.
Kurt was interviewed by Hot Metal magazine in 1991 about the possibility of censoring the album’s cover using a sticker. He stated that he would only allow the record label to place a sticker on the image if the text was:
“If you find this offensive, you must be an ardent pedophile.”
Child porn is not a good idea. However, Spencer’s image and the potential danger to his life may make it more difficult.
He claims to have suffered “permanent damage” — both financial and mental — because his “true identities and legal names are forever tied to the sexual exploitation he endured as a child which was sold around the world from the time he was born to the present.”
Is it possible for a boss to refuse a Nirvana baby’s application? We can’t see how having some amount of fame will affect the sales of his art. In fact, he stated in a 2015 documentary, that being a Nirvana baby has “opened doors” for his career in art, such as working with Shepard Fairey, an Obama Hope artist.
Maggie Mabie, an attorney, makes a good case for emotional distress. She told the New York Times that Maggie Mabie’s client has been in therapy for years to cope with the ramifications being on the album cover. She said:
“He has never met anyone who hasn’t seen his genitalia. It is a constant reminder of his inability to keep his privacy private. His privacy is worthless to all the world.”
Mabie accuses Spencer’s artists of exploiting the image.
They were trying to create controversy, because controversy sells. They were not trying to create a menacing image, but to cross the line. Spencer was exposed so they could make a profit.
The lawsuit’s most interesting point is not about porn, but about likeness rights. The suit states:
“Neither Spencer nor his legal guardians signed a release authorizing any images of Spencer or his likeness and certainly not of commercial child pornography depicting them.”
Spencer was only four months old at the time of the photograph. Weddle, a close family friend, offered $200 to his dad to take his baby to Pasadena’s Rose Bowl Aquatics Center to take photos and hang out. Rick Elden stated it in a 2008 interview.
“He called us up and was like, “Hey Rick, wanna get 200 bucks and throw my kid in the cocktail?” I was like, “What’s up?” And he was like, “Well, I’m shooting children all week, why don’t you come to the Rose Bowl and throw your child in the drink?” We had a huge party at the pool and no one knew what was happening!”
Three months later, Spencer’s family discovered that one of the photos he had taken of Spencer that day had been used as the album cover. Geffen Records later sent the baby a framed platinum album and a teddy bear.
$200 and a teddy bear. This is not a cut of the profits from one of the most successful albums in history.
Spencer once said it in a 2016 interview:
“It would be nice to have a quarter of every person who has seen my baby penis.”
We don’t know how much, but he is asking for $150k from each of 15 defendants, which would make the total $225 million.
[Embedded content] Why has Spencer never sued? It’s been many decades. The former infant seemed to have made the most of his small spotlight for years.
He had the word “Nevermind”, tattooed on his chest. He recreated the famous photo several times, including on the 10th, 17th and 20th anniversaries.
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He told the New York Post about his connection to the album the last time he did so in 2016.
“The anniversary is special to me. It’s odd that I did this for just five minutes when I was four months old. It became an iconic image. It’s cool, but strange to be part in something so important that I don’t even remember.”
It almost seems that something has changed in the year he took his pool photo recreations. He mentioned in a 2016 Time article that he had reached out to Krist Novoselic, Dave Grohl, and received no response. He said:
“I was a little upset for a while. I tried to reach out to them. I have never met anyone. I didn’t receive a call or an email. I woke up and was already a part this huge project. It’s quite difficult. You feel like you’re famous, but you did nothing but make their album.
He was talking about money at the time, saying:
It’s a journey. The album is a huge success because everyone involved has a lot of money. I feel like I’m the last bit of grunge music. I live in my mom’s house, and drive a Honda Civic.
“It’s difficult not to get upset when I hear how much money was involved… [When] i go to a ball game and think about it: Man, everybody at this game has probably seen the little penis of my baby penis,’ I feel like i got part my human rights revoked.”
This is a significant shift in attitude, but it was not something that happened overnight. He seems to be more upset with the idea of his image being used and made into a meme that has gone viral before he even consented. Most importantly, he doesn’t get paid properly for it.
He is just kind of chasing the dollar bill in the end. But is he right? Is he entitled to more compensation for his likeness, especially considering that it was his entire likeness, including his genitalia?
What do you think about the other argument that this is child pornography? Do you think the case has a chance of being heard in court? Do you think the case has a chance in court?
[Image via Daniel Tanner/Sheri Determan/WENN/Nirvana/YouTube.]
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August 25, 2021, 18:02 PDT