Take the bait: or Nevermind?

September 16, 2021

3 min read

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What's going on here?

Spencer Elden, the man who appeared as the infamous nude baby grasping for a dollar bill on the cover of Nirvana’s “Nevermind”, is suing the band, alleging commercial child sexual exploitation.

What does this mean?

Elden, now aged 30, states that his parents never signed a release authorising the use of the image with his genitalia visible on the album cover. He also alleges the nude image constitutes child pornography and that Nirvana had originally agreed to cover Elden’s genitals with a sticker.

Elden has previously recreated clothed versions of the image to mark the album’s 10th, 17th, 20th and 25th anniversaries. In 2016, he stated “it’s cool but weird to be part of something so important that I don’t even remember”. Nevertheless, Elden seems to have changed his tune and is now alleging that his “identity and legal name are forever tied to the commercial sexual exploitation he experienced as a minor”. Due to the widespread distribution and recognition of the image, with 30m copies having been sold worldwide, he is asking for at least £109,000 in damages from each of the 15 defendants including the surviving band members, Kurt Cobain’s estate and his former wife.

Non-sexualised photographs of infants are generally not considered child pornography under US law. However, Elden’s lawyer argues that the inclusion of the dollar bill makes the minor appear “like a sex worker”.

What's the big picture effect?

This case conjures up important questions regarding human rights, consent involving young children, and intellectual property.

Elden has expressed the humiliation he feels given the worldwide recognition of the album cover stating he feels he “got part of [his] human rights revoked”. Elden’s case alleges emotional distress, loss of education, wages and “enjoyment of life” after the publication of the album cover. With this in mind, any court must strike a balance between media, popular culture and human rights.

The question of consent involving minors plays an important role here. Elden was four months old when the image was made. His legal team has pressed that “this is an issue of consent [was] something that our client never had the opportunity to give”. Under US law, it is legal to use images of a minor with parental consent. It is also legal to use images of a minor without such consent, provided the image does not violate child pornography laws. However, the question of consent in this case is foggy. In a 2008 interview, Elden’s father recounted the photoshoot and stated that after having been offered $200 to take part by a family friend (the photographer), “we just had a big party at the pool, and no one had any idea what was going on!” After forgetting about the shoot, three months later the family saw the image blown up on the wall of Tower Records in Los Angeles. Even if parental consent is deemed to have been given, this case begs both legal and moral questions about consent. Firstly, where is the line drawn for parental consent? For example, perhaps the parents needed to know exactly what the image was intended to be used for. Secondly, from a moral perspective, should the law allow parents to consent to nude images of their child being taken? Minors cannot provide their own consent, so should such images be allowed at all?

The photographer, Kirk Weddle, believes that Elden is “conflicted about the picture… feel[ing] that everybody made money off it and he didn’t”. When it comes to intellectual property, if a photographer owns a photograph of you, you, unfortunately, do not have any rights to it as the subject. Under US law, even if parental consent was not given, Weddle owns rights to the photograph and the image will be considered legal unless Elden can prove that the image violates child pornography laws.  

Will Elden succeed in his case? – Kirk Weddle seems to be sceptical, stating “it’s always the record labels that make the money”.

Report written by Hannah Parker

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