The baby — now man — who appears on the cover of Nirvana’s Nevermind has filed a lawsuit against the band and others involved in the photograph, claiming the image constitutes child pornography.
Spencer Elden, now 30, claimed in a suit that the defendants involved “knowingly produced, possessed, and advertised commercial child pornography,” that they “failed to take reasonable steps to protect Spencer and prevent his widespread sexual exploitation,” that they’ve continued “to benefit from their participation in Spencer’s commercial sexual exploitation,” and that Spencer “has suffered and will continue to suffer lifelong damages.”
The defendants in the case include the two surviving members of Nirvana, Dave Grohl and Krist Novoselic, the three people who oversee Kurt Cobain’s estate (Courtney Love, Guy Oseary, and Heather Parry), photographer Kirk Weddle, art director Robert Fisher, and various record companies and distributors. Nirvana’s former drummer Chad Channing is also listed as a defendant, even though he was not involved in Nevermind. Elden is seeking $150,000 damages from each defendant, plus other legal costs.
The defendants and their representatives did not immediately return Rolling Stone’s request for comment. Courtney Love did seem to nod to the lawsuit in an Instagram post, writing in a caption, “I don’t even hate the legal profession in LA county… I’ve got nothing much on my mind. Except weird lawsuits and the sad passing of Charlie Watts.” (As an added flourish, Love separated “weird” and “lawsuits” with a facepalm, sparkle and pizza emoji.)
Elden was four months old at the time he appeared on the Nevermind cover, with the photograph taken at a pool in Pasadena, California. While non-sexualized photos of infants are typically not considered child pornography under law, the suit argues that the images of Elden are sexualized.
For instance, the suit claims that Weddle, the photographer, tried to ensure the cover would “trigger a visceral sexual response from the viewer” by activating “Spencer’s ‘gag reflex’ before throwing him underwater in poses highlighting and emphasizing Spencer’s exposed genitals.” It also claims that pairing the nude portrait with a dollar bill on a fish hook makes it look as if Spencer is being depicted “like a sex worker.”
The suit also compares the Nevermind cover to other controversial album covers “depicting a child or outright child pornography” like Scorpions’ Virgin Killer, Blind Faith’s self-titled, and Van Halen’s Balance. It claims, “Like other controversial album covers, the Defendants sought to garner attention with an explicit image which intentionally focused on Spencer’s carefully positioned enlarged genitals.”
After noting the global success of Nevermind, the suit mentions that Spencer never received any compensation for the photo and that neither he, nor his 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.” (Elden’s father, Rick, who was friends with Weddle, told NPR in 2008 that the parents were paid $200 for the shoot.)
While Elden has repeatedly re-created the Nevermind cover as an adolescent and adult (though not nude), the suit ends by saying, “Spencer has been and will continue to suffer personal injury by the distribution and possession of child pornography depicting him.” It goes on to state that Elden has suffered “extreme and permanent emotional distress with physical manifestations, interference with his normal development and educational progress, lifelong loss of income earning capacity, loss of past and future wages, past and future expenses for medical and psychological treatment, loss of enjoyment of life” and other losses to be determined at trial.