Alexandros Antoniou, Lecturer in Media Law, University of Essex
Nirvana’s album Nevermind has reached its 30th anniversary and is under more scrutiny than ever as a result of a lawsuit recently filed by the former cover-star.
Spencer Elden, the underwater baby tempted by a dollar bill on a fishhook, is suing the band and Kurt Cobain’s estate for having “knowingly produced, possessed, and advertised commercial child pornography”. The claim states that the band benefited financially from their participation in his “sexual exploitation”. Elden now seeks a civil remedy of US$150,000 per defendant for the “lifelong damages” he claims to have suffered.
Originally inspired by Cobain’s fascination with waterbirths, it has been said the cover can be interpreted as a comment on the values society imparts to the youth. The same picture is, however, interpreted differently in the lawsuit which attempts to weave in the idea that the image was designed to elicit a sexual response from viewers.
It goes so far as to suggest that Cobain “chose” the image depicting Elden “like a sex worker – grabbing for a dollar bill that is positioned dangling from a fishhook in front of his nude body”.
The legal argument
Under US federal law, a key factor in distinguishing between the artistic cover and illegal explicit content is whether the depiction of the minor constitutes a “lascivious exhibition” of their intimate parts – in other words, a depiction designed to excite sexual stimulation in the viewer. Also, any determination of lasciviousness must be based on the depiction taken as a whole, with its overall content and context in mind.
Elden is likely to face an uphill struggle in persuading a court that the cover is deliberately focused on the baby’s genitals and that the creators intended to elicit a sexual response – as the first thing most people probably notice is the underwater background.
But, even if he was successful on the child pornography ground, the difficult question would arise of whether fans who own or have downloaded the album with its cover art have copies of a child sex image and so have committed a crime. https://www.youtube.com/embed/I0HZqUsVgQA?wmode=transparent&start=0
The lawsuit also suggests that Elden has suffered a “loss of enjoyment of life” and had his privacy violated. But it could be pointed out that Elden has previously acted in ways that continue to cement his connection with the band. He has re-enacted the cover to honour the album’s past anniversaries and attended events to sign album covers.
Although it’s not unusual for people to reconsider the impact of their experiences from early life, the fact that Elden leaned into the public sphere and seemingly relished his involvement with the album may dilute the strength of his claims.
Elden’s parents were reportedly paid US$250 for the photo shoot. Presumably, this was a standard rate for an unknown model rather than taking into account what the image would be used for.
It is uncertain whether this money was passed down to Elden. He has expressed his bitterness about having never directly profited from his involvement in the Nevermind project. As his parents’ deal cannot now be renegotiated, some might dismiss his current lawsuit as an attempt to get compensation for the commercialisation of his image.
At the core of Elden’s lawsuit is the fact that the band’s team got his parent’s consent before photographing him. Though of course being a baby, Elden did not have any choice. And from this perspective, Elden’s case is a useful reminder for parents to think about the types of images they share online.
A warning to ‘sharents’
A lot has changed since the release of Nevermind in September 1991. With the rise of social media sites and photo-sharing networks, the average parent today is said to share over 1,000 images of their child online before their fifth birthday. Compared to the Nirvana baby album cover, images shared online nowadays are even harder to control.
Indeed, a recent study found that 42% of teenagers in 25 countries are troubled by what their parents post about them on social media.
Although some steps have been taken to protect children’s privacy online – such as the introduction of the Children’s Code which applies to digital services that target minors – the law is not clear as to whether a child’s right to privacy is essentially lost when parents share their images online.
The legal avenues currently available do not guarantee protection against parental “over-sharenting” either, meaning that so-called “generation tagged” may have to live with the longevity of their digital footprint – often attached to them without their consent.
Elden has previously addressed the popularity of the iconic cover and he appears conflicted about it. His ambivalence about the image may be valid. The public’s perception of the album and the visceral feelings attached to its success should not discourage a dispassionate and neutral legal assessment of whether the photograph is unlawful.
But the Nirvana baby lawsuit also serves as a timely reminder to parents to think carefully of the digital shadows they may create for their children. Indeed, parents cannot simply have a “nevermind” attitude to what they share online.