There is a new lawsuit filed in the Eastern District of California against the band Nirvana over its most iconic cover could just as well have the title in the caption: “Nevermind.” The lawsuit was filed by Spencer Elden who was featured on the cover as a naked baby. He is now claiming that the celebrated cover was child pornography and he is entitled to money. A lot of money. Indeed, the lawsuit has a greater appetite than authority in seeking such damages thirty years after the album was released.The album cover showed Spencer Elden as a baby underwater in a swimming pool with his genitalia exposed. In the picture was a digitally added dollar bill on a fishing line, leaving the impression that he was trying to grab the dollar.
Elden has celebrated the anniversary of the album through the years at events and even posed as an adult (in a swimsuit) to reproduce the shot. He even reportedly has “Nevermind” tattooed on his chest. Now however he has denounced the image as “child porn” and demands damages for his harm. Indeed, his complaint states that the late Kurt Cobain “chose the image depicting Spencer—like a sex worker— 14 grabbing for a dollar bill that is positioned dangling from a fishhook in front of his nude body with his penis explicitly displayed.”
The complaint ignores the obvious artistic value of the image. Instead, it charges that
“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.”
The case is brought under statutes like 18 U.S.C. 2255, “Civil Remedy for Personal Injuries,” which provides that any person who is a victim of a violation of child pornography may recover the actual damages or liquidated damages in the amount of $150,000 per victim, and reasonable attorney’s fees.
Civil and statutory claims can be curtailed by constitutional limitations. This is such a case in my view. Liability would sharply abridge free speech in the use of nudity for artistic and expressive purposes.
In 2002, the U.S. Supreme Court ruled against a provision of federal law that banned computer simulations and virtual pornography under the first amendment. In Ashcroft v. The Free Speech Coalition, Justice Kennedy in a 6-3 decision found that the Child Pornography Prevention Act of 1996 was “overbroad” and swept within its prohibitions many valuable and artistic works.
“Pictures of what appear to be a 17-year-old engaging in sexually explicit activity do not in every case contravene community standards . . . The (Act) also prohibits speech having serious redeeming value, proscribing the visual depiction of an idea — that of teenagers engaging in sexual activity — that is a fact of modern society and has been a theme in art and literature for centuries.”
Likewise, areas like defamation have been limited by the First Amendment. In New York Times v. Sullivan. the Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. As such, public officials and public figures must show either actual knowledge of its falsity or a reckless disregard of the truth.
The image of naked bodies have been featured in art since the earliest artistic periods from images of the baby Jesus to cherubs to realistic imagery. These are not depictions for prurient appeal. The notion that this is meant to make the baby look like a sex worker is ridiculous, but even if it were true, it might not overcome a claim of artistic value.
The family was paid for the photo and Spencer has made comments that suggest that his interest may not be purely monetary. In a Time magazine article on the album’s 25th anniversary, Elden, is quoted as saying he was “a little upset for a bit … you feel like you’re famous for nothing, but you didn’t really do anything but their album.” He added that while the cover was brilliant “It’s hard not to get upset when you hear how much money was involved… [When] I go to a baseball game and think about it: ‘Man, everybody at this baseball game has probably seen my little baby penis,’ I feel like I got part of my human rights revoked.”
In my view, the case is not only lacking legal merit but would pose a serious threat to artistic expression under the First Amendment.
Here is the complaint: Elden v. Nirvana