It’s not uncommon for people to rethink experiences from their early life. And a lot has changed since 1991, when Nirvana shot the album cover for Nevermind, the sophomore album that catapulted the band into superstardom — and whose image of a baby is now the subject of a lawsuit from that very baby.
That baby is now a grown man: Spencer Elden, now 30, filed a lawsuit this week alleging that the Nevermind cover constitutes child pornography. Psychologically speaking, he has every right to feel overwhelmed by conflicting emotions; a person’s prefrontal cortex isn’t fully developed until age 25, and post-1991 developments like social media have also helped to destigmatize discussion of mental health. (I, too, was born in 1991, and my therapist, who I started seeing in 2019, has helped me recognize that there’s trauma from my childhood that I brushed off as insignificant. I’ve had quite a few a-ha moments in my late twenties — and my likeness was not part of a marketing for what’s now considered one of the greatest rock albums of all time.)
Legally speaking, however, experts say Elden does not have much of a case on his hands.
At the core of this knotted web is one thing: Elden’s legal guardian agreed to let a buzzing punk band take photos of him as a baby for 200 bucks. The band’s team asked, and the guardian said yes. There may have been no way of knowing that the album and cover art would be as influential as it became — but, regardless, the band and Elden’s guardian both struck some sort of agreement. The lawsuit over the image is unlikely to succeed, attorneys from four separate law firms, who all have experience in matters of child pornography, tell Rolling Stone.
“The case is likely going to be dismissed,” says criminal defense attorney Matthew Matejcek of Beles & Beles, pointing to the Department of Justice’s definition of child pornography. “It has to appeal to the viewer’s prurient interest. What’s going to be at issue here is whether this album cover incites the lustful interest, sexual stimulation, or gratification of the viewer. And I think it’s pretty clear that’s not the purpose.”
“This is absolutely not a valid case of child pornography,” says Paul Wallin of Wallin & Klarich, which has specialized in sex crimes for 35 years. Wallin also brings up California’s Statute of Limitations on Sex Crimes and, more specifically, the Code of Civil Procedure 340.1, which states that people who were victims of a sex crime as a child have eight years after they become adults at 18 to file a complaint. An exception to this rule is that if the alleged victim doesn’t realize they were harmed until after their maturity, they have three years from that date of recognition. “If he’s outside that age, he would have to go to a therapist, who would have to give a declaration to be able to sue and explain to a judge why he has mental health issues that are just coming up now,” Wallin explains. “It would be very difficult for a mental health professional to say that, and the judge would have to buy it.” (There is, however, no mention of such a therapist in the lawsuit.)
If Elden just wanted to sue for an entity using his likeness for commercial purposes without the right to do so, that would be a different kind of legal case — one that probably would not result in as many head-turning headlines as the one at hand. However, the the statute of limitations for breach of contract in California is four years for a written contract and two for an oral contract.
Wallin says he already had conversations about this photograph with more than a dozen professionals — media, other lawyers, and teachers — and that “no reasonable person” would consider it to be child pornography. “This is not anything remotely like any child pornography case we’ve ever handled, and [my firm has] handled over 1,000 of them,” he says.
California-based criminal law specialist Christopher Morales is similarly perplexed. “He’s swimming — he’s not doing anything provocative or sexual in nature,” he says. Morales thinks that the “huge increase in child porn cases” in recent years — mainly due to evolving technology that helps police officers pinpoint wrongdoing more quickly and efficiently — may be playing a role here. This surge, according to Morales, has led to increase in conversations around the topic itself: “Maybe [Elden’s] lawyer knows that,” he says. “The definition of child porn has been expanding a little bit,” he says. “But this still doesn’t fall under the definition.” Speaking of an increase of conversations: The 30th anniversary of Nevermind is this September.
By law, non-sexualized nude photos of infants are generally not considered child pornography — but since art is subjective, the symbolism of this image may be up for debate. If this case does indeed go to court, the winning side will need to prove intent through an investigation.
A lot of Nirvana fans believe that the picture doesn’t have any prurient aspects to it, thinking that it’s just a comment on capitalism,” says Dimitri Gorin, who specializes in criminal defense matters in state and federal court at Eisner and Gorin, which has handled close to 50 child pornography cases. “But there are people representing the alleged victim saying, ‘Hey, this is a baby chasing money like a sex worker.’ That’s two different interpretations of the same evidence. So, they’re going to need the discovery process to figure out what the intent was of the person taking the pictures. They have to prove that this was done with prurient interest or lascivious intent to produce and distribute child pornography. This cover has been around for dozens of years, and society doesn’t perceive it as child porn. This might just be a money grab.”
“I’m not a betting person, but I would bet my practice that this person will never be successful”
Generally, the Nevermind cover has not conjured concerns of child porn from listeners. In fact, when Nirvana’s label first expressed concerns about what record stores might think about the image before releasing the album, Kurt Cobain himself said sexualization was the last thing on his mind. He proposed putting a sticker over Elden’s genitalia, with the copy: “If you’re offended by this, you must be a closet pedophile.” Nirvana did not actually need to enact this plan, since most record shops didn’t have a problem with the art. (Michael Azerrad writes about this in his book about Nirvana, as Slate pointed out in a recent article.)
“They’re not going to be able to show that [Nirvana’s] purpose was to exploit or promote child pornography,” says Wallin. “I’m not a betting person, but I would bet my practice that this person will never be successful.”
Testimony, in this case, could be helpful evidence. “Someone could say, ‘Hey, Person A told me that he wanted to make a cover with a baby because he has a sexual interest in babies,’ or that person could say, ‘No, no, no, when we talked about it, our intent was just to make a comment on society. We never talked about sex,'” Gorin points out. “There may be an explanation as to why they chose a nude baby over a clothed baby.”
If Nirvana and its team members had a history of observing or creating child pornography, that could also change matters. “They could try to get the judge to see a history of such conduct,” says Wallin. “Where’s the history?”
But the fact that Elden has personally recreated the photo on several occasions to commemorate various anniversaries of the album probably won’t help him in court. Even if the jury decides this photograph is an image of child pornography, Elden will then have to prove specific damage to decide how much he is lawfully owed. “If the guy has been okay with the picture, has reveled in the celebrity status, and has profited from it, it will be hard for him to argue that he’s now been damaged,” says Gorin. “How much debasement is there if you’re reveling in it yourself?” Matejcek agrees: “For him to suddenly have issue with this image after years and years of partaking in it, and soaking in the fame that came along with the album cover, is a bit suspect.”
The amount that Elden is asking for — $150,000 from each defendant, of which there are more than 10 — also seems somewhat random: “It wouldn’t surprise me if the attorneys wanted to go with a really high number to get a conversation going for settling outside of court,” says Matejcek. “I know that’s pretty standard practice.”
Elden claims in the lawsuit that he has “suffered and will continue to suffer lifelong damages.” His internal feelings of embarrassment, neglect, or betrayal may be completely valid, and all mental health matters should be treated with legitimacy — but child pornography allegations are also a serious, and separate, matter, and the two issues will certainly not be conflated into one by any potential court.