Spencer Elden, the man whose unusual baby portrait was used for one of the most recognizable album covers of all time, Nirvana’s “Nevermind,” filed a lawsuit Tuesday alleging that the nude image constituted child pornography.
The album cover depicts Elden underwater in a swimming pool as a then-infant with his genitalia exposed. The image has generally been understood as a statement on capitalism, as it includes the digital imposition of a dollar bill on a fishhook that the baby appears to be enthusiastically swimming toward. Non-sexualized nude photos of infants are generally not considered child pornography under law.
However, Robert Y. Lewis, Elden’s lawyer, offers an unusual interpretation of the image to argue that it crosses the line into child porn, writing that the inclusion of currency in the shot makes the baby appear “like a sex worker.”
“Defendants intentionally commercially marketed Spencer’s child pornography and leveraged the shocking nature of his image to promote themselves and their music at his expense,” reads the lawsuit, filed in the U.S. District Court’s central district of California and obtained by Variety. “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 cover art subject — who, like the “Nevermind” album itself, is now 30 — is asking at least $150,000 from each of the defendants, who include include surviving band members Dave Grohl and Krist Novoselic; Courtney Love, the executor of Kurt Cobain’s estate; Guy Oseary and Heather Parry, managers of Cobain’s estate; photographer Kirk Weddle; art director Robert Fisher; and a number of existing or defunct record companies that released or distributed the album in the last three decades.
Curiously, original Nirvana drummer Chad Channing is also named as a defendant who was part of the group at the time, even though he had been replaced by Grohl in 1990, before the album was recorded or the cover photography shot.
Elden has repeatedly recreated the pose as a teenager and adult, diving into pools to pose (with swim trunks on) on the occasion of the album’s 10th, 17th, 20th and 25th anniversaries. However, in most of the interviews accompanying these photo shoots, he expressed deeply mixed feelings about being famous for the “Nevermind” cover and whether he was exploited by it. Until now, despite his ongoing ambivalence about the photo’s legacy, he hadn’t described it as pornographic.
What was a constant, in the past as now, is that Elden has said he was never compensated for the photo beyond the $200 his parents were paid for it on the day of the shoot. In previous interviews, he’s said he tried to get in touch with Grohl and Novoselic, on a friendly basis, but never got a reply. A possibly new contention in the lawsuit is that Elden’s parents never even signed paperwork allowing any use of the image.
“Neither Spencer nor his legal guardians ever signed a release authorizing the use of any images of Spencer or of his likeness, and certainly not of commercial child pornography depicting him,” reads the suit.
The filing references some famous, or infamous, moments in rock album art history: “The concept and creation of this image replicated previous controversial campaigns used to promote music with sexually explicit material depicting a child or outright child pornography, including the album covers for Scorpion’s ‘Virgin Killer,’ Blind Faith’s ‘Blind Faith’ and Van Halen’s ‘Balance.'”
In 2016, the last time Spencer recreated the pose as an adult, he told the New York Post, “The anniversary means something to me. It’s strange that I did this for five minutes when I was 4 months old and it became this really iconic image. …. It’s cool but weird to be part of something so important that I don’t even remember.”
In 2008, Spencer’s father, Rick, recounted the 1991 shoot to NPR. His friend Weddle, the photographer, “calls us up and was like, ‘Hey Rick, wanna make 200 bucks and throw your kid in the drink?,'” the father recalled. “I was like, ‘What’s up?’ And he’s like, ‘Well, I’m shooting kids all this week, why don’t you meet me at the Rose Bowl (Aquatic Center), throw your kid in the drink?’ And we just had a big party at the pool, and no one had any idea what was going on!”
The NPR story went on to say that the family didn’t think more about it until, three months later, they saw a 9′-by-9′ blow-up of the cover on the Tower Records wall on Sunset Blvd. “Two months later,” the article said, “Geffen Records sent 1-year-old Spencer Elden a platinum album and a teddy bear.”
Says the lawsuit: “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 emphasizing Spencer’s exposed genitals. Fisher purchased fishhooks from a bait and tackle shop to add to the scene. At least one or more film cartridges were exposed in a short period of time which included at least 40 or 50 different image shots of Spencer. 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.”
The lawsuit cites a passage from writer Michael Azerrad’s biography “Come as You Are: The Story of Nirvana,” in which it was said that the then-label — DGC, a division of Geffen Records — wanted to use a different image, but Cobain insisted, allegedly saying that the only alteration he would consider making was covering the infant’s penis with a sticker that would read: “If you’re offended by this, you must be a closet pedophile.” The label, of course, opted to release it sans Cobain’s suggested sticker.
In a Time magazine article on the album’s 25th anniversary five years ago, Elden, then 25, said, “I got a little upset for a bit” as he grew older. “I was trying to reach out to these people. I never met anybody. I didn’t get a call or email. I just woke up already being a part of this huge project. It’s pretty difficult — you feel like you’re famous for nothing, but you didn’t really do anything but their album.”
He said then that he recognized the cover concept was “genius” — and, in fact, had the “Nevermind” emblem tattooed on this chest. Yet, he added in the 2016 story, “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.”
Among the past and present record companies named in the suit, besides the now-defunct DGC and Geffen imprints, are Warner Records (reflecting Warner Music Group’s long-expired distribution deal with Geffen in the early ’90s), MCA Music and the Universal Music Group (which currently has the Nirvana catalog via the Interscope Geffen A&M label).