Will Nirvana Cover Baby’s Child Pornography Case Stand Up – Lawyers Discuss
One of the bigger news items of the week came when Spencer Elden, the now 30-year-old man who was actually the naked swimming baby on the cover of Nirvana's massive 1991 album Nevermind, filed a lawsuit in California federal court against the band, Universal Music Group, Warner Records, the photographer and other individuals involved with the cover art choice. Elden claimed that the famous album cover was a case child sexual exploitation that could be deemed child pornography. But will his case stand up? The Hollywood Reporter contacted attorneys to get a better idea if the newly filed complaint has legal legs.
News of the lawsuit (which can be viewed here) started to circulate on Tuesday (Aug. 24), with Elden alleging that the image depicts the baby as “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.” He also claims he had a “reasonable expectation that the images depicting him would remain private” and maintains his legal guardians didn’t sign a release authorizing the use of the images.
According to The Hollywood Reporter, entertainment litigation partner Bryan Sullivan of Early Sullivan stated that he felt the suit was "ridiculous," and shared his doubt that there wasn't a written agreement. “I think it is highly unlikely that a record company would use a photograph for an album cover without verifying the existence of a release signed by the parents,” he says. “But, if is there is no release, it does not mean he has a claim for child pornography. As to the right of privacy, you can waive it by your actions or by his parents’ actions in allowing him to be photographed.”
It should be noted that Elden's attorney, James Marsh, has insisted that permission wasn't granted. “Our understanding is there was no release,” he says. “In a culture in which we are trying to uphold consent as one of the highest values, an image of a child naked that he didn’t consent to should cause people concern.”
The publication also contacted another entertainment litigator with a background in invasion-of-privacy and right-of-publicity cases who stated, “Depending on which federal judge this case is assigned to downtown, plaintiff’s counsel is likely going to be in for a very rough ride. Sanctions are a definite possibility.” He added that there were "a plethora of defenses" to the lawsuit.
“I think what will be most troubling for any judge will be the amount of time that has elapsed since the photo was published, the fact the kid’s parents did this knowingly (more or less, but they knew the naked baby was being photographed), and the numerous times that the plaintiff himself embraced the photo and sought publicity for himself,” stated the unnamed attorney.
Publicity could be a key issue, adds entertainment litigator and Lavely & Singer partner Andrew Brettler, who told The Hollywood Reporter, “What I think really damns their case is the fact that this kid sat for all these interviews and re-created the album art.”
Elden has indeed been quoted for previous features about the album art in publications. In a 2015 piece for the Guardian, Elden stated, “I don’t think my parents really gave my taking part in this shoot too much thought. They knew who Nirvana were, but weren’t really into the grunge scene. I was four months old and my dad was attending art school at the time, and his friends would often ask for help with their projects. So his friend the photographer Kirk Weddle called him and said, ‘Do you want to make some money today and throw your kid in the pool?’ And he agreed."
Elden continued, "My parents took me down there, apparently they blew in my face to stimulate my gag reflex, dunked me in, took some pictures, and pulled me out. And that was it. They were paid $200 and went to eat tacos afterwards. No big deal. Weddle had shot a number of babies to find the right image, and they ended up choosing me. I think it’s because of my penis — a lot of the other babies were girls. Also, the composition seemed very natural. I am glad they chose me.”
Marsh, Elden's attorney, feels a key issue is whether the photo would be considered child pornography. “Hindsight is 2020,” says Marsh, “You can cherry-pick all kinds of things he’s said over the years. He’s also said he felt profoundly humiliated and exposed by this image.”
As for whether the suit will hold up, Brettler stated he felt that California's anti-SLAPP (strategic lawsuits against public participation) statute will lead to a swift resolution. “My initial reaction to reading about the suit yesterday was that it is a SLAPP under California law and should be promptly dismissed,” says Brettler, noting that the statute’s provision regarding fee awards could get expensive for Elden. “If an anti-SLAPP motion is granted, he’d have to pay the legal fees for all the defendants.” He continues, “I’ve represented actresses whose nude photos were released when they were minors. That’s very different. A naked baby is not necessarily pornographic.”
Marsh responded that he felt the California SLAPP law would not be applied here as it extends to protected speech, and once again, the designation of child pornography would not make it protected speech. “We vetted this case very carefully over many years before we filed this. We chose to bring this case forward because we have a good-faith belief that this qualifies under the law as child exploitation material,” he added.
As for whether the image would be considered child pornography, Brettler stated, “There is no bright-line rule. It has to be something created to stimulate prurient interests. There’s nothing in my view that a reasonable person would see as sexual about that image.”
In deeming whether an image could be considered child pornography, after ruling out actual or simulated sexual conduct, under the law the image must contain a "lascivious exhibition of the genitals or pubic area.” The factors for determining such a finding include whether the genitals are the focal point of the picture, whether the setting or pose are sexually suggestive, the amount of nudity, whether the image suggests a willingness to engage in sexual activity, and whether it is designed to elicit a sexual response in the viewer.
“The Plaintiff and his attorney attempt to inject sexuality into it by arguing the baby grabbing at the dollar bill on a fishhook is ‘like a sex worker,’ but that is an extreme interpretation in an attempt to support the frivolous allegations in the complaint and ignores the artistic message,” says Sullivan. “I doubt any judge or jury would find this album cover to be pornography.”
Another attorney, Brown Rudnick's Michael Bowe, adds, “This seems like an unserious college philosophy argument in a bar. Most serious-minded people would — and have for decades, with respect to this image — understood this was not sexually explicit or suggestive. Just like my parents’ home movies of me in the tub as a baby were not. I think one could debate whether it is the best parenting decision to let someone take pictures of your naked baby underwater for a rock album cover. And he may have a fair complaint about not being paid or about his privacy being invaded unfairly then or now. And maybe they should just respect his concerns now out of decency. But those are different issues.”
Both Bowe and Sullivan also shared their concern that claiming "child pornography" in this case dilutes the meaning as it pertains to some of the other heinous and serious crimes that are more clearly defined child pornography cases.
As for the timing of the case, Marsh revealed that Nirvana's upcoming 30th anniversary of Nevermind was a catalyst to move forward with the complaint. “We needed to get this done and try to put a stop to the re-issuance prior to the anniversary,” stated Elden's lawyer.
“Would the album have been as iconic without his penis as it was with it? If it could have, why did they pick the image that displayed it?” Marsh says, pointing to an allegation in the complaint that Cobain wanted to cover the baby’s genitals with a sticker that read “If you’re offended by this, you must be a closet pedophile” if the album cover couldn’t be left uncensored. “We want the sticker on there. That’s what it’s all about. I think Nirvana, given the publicity from this lawsuit, will more than make up for the cost of the sticker.”