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Why the baby on Nirvana's 'Nevermind' album is suing now
The album cover "exposed Spencer's intimate body part and lasciviously displayed Spencer’s genitals from the time he was an infant to the present day," the lawsuit, filed in California, said.

by Maria Cramer

NEW YORK (NYT NEWS SERVICE).- Spencer Elden was 4 months old when he was photographed by a family friend in 1991 drifting naked in a pool.

The picture, taken at the Rose Bowl Aquatics Center in Pasadena, California, would be used that year for the cover of “Nevermind,” Nirvana’s seminal second album that helped define Generation X and rocketed the Seattle band to international fame.

In the decades that followed, Elden appeared to celebrate his part in the classic cover, recreating the moment for the album’s 10th, 17th, 20th and 25th anniversaries, though not naked.

“It’s cool but weird to be part of something so important that I don’t even remember,” he said in 2016 in an interview with The New York Post, in which he posed holding the album cover at 25.

Now, however, Elden, 30, has filed a federal lawsuit against the estate of Kurt Cobain, the musician’s former bandmates, David Grohl and Krist Novoselic, and Cobain’s widow, Courtney Love, among other parties. He claimed that they, along with Geffen Records, which released “Nevermind,” profited from his naked image. It is one of the bestselling records of all time, with at least 30 million copies sold worldwide.

“Defendants knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so,” according to the lawsuit, which was filed Tuesday in federal court in California.

Elden suffered “permanent harm” because of his association with the album, including emotional distress and a “lifelong loss of income-earning capacity.” The lawsuit did not provide details about the losses and said they would be disclosed at trial.

Elden, an artist living in Los Angeles County, has gone to therapy for years to work through how the album cover affected him, said Maggie Mabie, one of his lawyers.

“He hasn’t met anyone who hasn’t seen his genitalia,” she said. “It's a constant reminder that he has no privacy. His privacy is worthless to the world.”

The lawsuit said that Elden is seeking $150,000 from each of the 15 people and companies named in the complaint, including Kurt Weddle, the photographer who took the picture. Weddle did not respond to messages requesting comment.

The photo of Elden was picked from among dozens of pictures of babies Weddle photographed for the album cover, which Cobain envisioned showing a baby underwater.

Weddle paid Elden’s parents $200 for the picture, which was later altered to show the baby chasing a dollar, dangling from a fishhook.

“They were trying to create controversy because controversy sells,” Mabie said. “The point was not just to create a menacing image but to cross the line and they did so in a way that exposed Spencer so that they could profit off of it.”

She said her client sometimes agreed when the band, media outlets and fans asked him to recreate the photo as an adult, but he eventually realized that this only resulted in the “image of him as a baby being further exploited.”

The representatives for Cobain’s estate did not immediately respond to a message seeking comment. Representatives for Grohl, Love, and Geffen Records, which is now part of Universal Music Group, did not respond to messages.

Elden, who declined to comment on his suit, said in a short documentary in 2015 that the album cover had “opened doors” for him. For example, he worked with Shepard Fairey, the artist who was sued by The Associated Press for using an image of Barack Obama for his piece “Hope.”

Over the years, he has expressed ambivalence about the cover.

“It’d be nice to have a quarter for every person that has seen my baby penis,” he said in a New York Post interview in 2016.

In a different interview that year, he said he was angry that people still talked about it.

“Recently I’ve been thinking, ‘What if I wasn’t OK with my freaking penis being shown to everybody?’ I didn’t really have a choice,” Elden said to GQ Australia.

He said that his feelings about the cover began to change “just a few months ago, when I was reaching out to Nirvana to see if they wanted to be part of my art show.”

Elden said he was referred to managers and lawyers.

“Why am I still on their cover if I’m not that big of a deal?” he said.

Mabie said that Elden has long felt discomfort over the images and had expressed it in even earlier interviews when he was a teenager.

“Mr. Elden never consented to the use of this image or the display of these images,” she said. “Even though he recreated the images later on in life, he was clothed and he was an adult and these were very different circumstances.”

Mabie said his parents never authorized consent for how the images would be used.

She noted that Cobain once suggested putting a sticker over the baby’s genitals after there was pushback to the idea for the cover.

The performer, who died in 1994, said the sticker should read: “If you’re offended by this, you must be a closet pedophile.”

Elden is “asking for Nirvana to do what Nirvana should have done 30 years ago and redact the images of his genitalia from the album cover,” Mabie said.

This lawsuit is not a typical child pornography case, said Mary Graw Leary, a professor at the Columbus School of Law at the Catholic University of America.

“Nudity of a child alone is not the definition of pornography,” she said. “The typical child pornography that is being seen in law enforcement and pursued in the courts can be violent. The children are young and it is very graphic.”

But there are factors under federal law that allow a judge or a jury to determine whether a photo of a minor “constitutes a lascivious exhibition of the genitals,” including if they were the focal point of a photo, Graw Leary said.

That part of the law “gives a bit more discretion to the court,” she said. “It’s not a case with easy answers.”

Elden’s past comments about the cover should not undermine his current claim that he was a victim of child pornography, she added. The law does not pick between children who immediately denounce their abusers and children who initially were dismissive about what happened to them, she said.

“We don’t want to be in a position where we’re only going to consider one case criminal because in the other, the child didn’t think it was a big deal at the time,” Graw Leary said. “We don’t only protect certain kids.”

This article originally appeared in The New York Times.

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