Last week, the model who appeared as a naked infant on the cover of Nirvana’s 1991 album "Nevermind" filed a lawsuit claiming damages on the grounds that the photograph constitutes child pornography. This claim is problematic on a number of levels.
To begin, two important points. The first is that classic internet phrase, “I’m not a lawyer, but,” which should qualify everything that follows. This article is intended to prompt discussions around some of the issues that this lawsuit raises.
The second is the difficulty of the term “child pornography.” The Department of Justice lists it as “any visual depiction of sexually explicit conduct involving a minor” but the phrase has been challenged over recent years for conflating pornography with child sexual abuse imagery. A close definition of pornography means any content intended to stimulate sexual excitement but the cultural understanding carries the implication of consent — something a child cannot give. For several years, the Internet Watch Foundation has been campaigning for the term “child pornography” to be replaced by “child sexual abuse imagery” so that it no longer risks diluting the seriousness of the crimes being committed.
Source: Internet Watch Foundation (iwf.org.uk)
Among the many reactions prompted by news of the lawsuit was skepticism regarding the claims that the image constitutes child sexual abuse. Nudity does not imply sex by default, and this case will hinge on whether the complainant’s lawyers can convince a judge that the child being depicted is engaged in what the DoJ describes as “sexually explicit conduct” or that the image places a deliberate emphasis on the genitals.
In asserting that the image is sexual, the complaint claims that the baby reaching for the dollar bill “with his penis explicitly displayed” makes him appear “like a sex worker.” It argues that the child had his gag reflex triggered before being thrown underwater (contact sheets show the parents holding him) and states that the intention was to “trigger a visceral sexual response from the viewer.” It argues that the band sought to “garner attention with an explicit image which intentionally focused on Spencer’s carefully positioned enlarged genitals” but offers no further explanation.
According to the shoot’s art director, Robert Fisher, the choice of a dollar bill came after other ideas — including a piece of meat, a dog, a CD, and a burrito — had been discussed for several hours before being dismissed. As he notes, “Kurt didn’t come with like a grand plan or a message he wanted to get across.” Of course, how an image is conceived and intended does not necessarily carry over to how it is then perceived. However, you might assume that Nirvana’s lawyers will argue that the child’s nudity is intended to invoke a sense of innocence and vulnerability and, if anything, that the image is a loose, cynical commentary on the music industry and late capitalism more broadly — two subjects that Nirvana's lead singer, Kurt Cobain, discussed regularly both in his lyrics and in interviews. Ultimately, if this case comes to court, it will be argued there is no sexual interest and the child’s pose is not provocative.
Lawyers now speculating on the claim are skeptical of its merit. Jamie White, an experienced lawyer in cases of child sexual abuse and one of the first attorneys involved in action against Larry Nassar, told the New York Post: “I’ve never seen a more offensive, frivolous lawsuit in the history of my career.” He added, “This is a money grab,” and explained that it was an affront to true victims of abuse. However, as another lawyer, Jeff Herman, states in the same article, it will come down to whether the jury can be convinced that the album cover genuinely constitutes pornography.
The now 30-year-old Spencer Elden claims that he has been exploited. Whether this qualifies as child abuse or child sexual abuse remains to be seen, but however the proceedings are settled, it should act as a reminder to us that letting other people photograph your child means that you never have control over that image — now even more so than ever. It could be argued that if Elden has experienced trauma as result of his parents’ decision to use him in the shoot, his complaint — legal or simply personal — would be better directed towards them. Child sex abuse imagery aside, there may be grounds for claims that the image was exploited commercially — potentially without a model release — and that Elden’s parents, though paid, were not made fully aware of how the image was going to be used.
As noted by several of the reports, Elden has recreated the album cover on multiple occasions to mark various anniversaries and has the word Nevermind tattooed across his chest. For many, this proves that Elden’s complaint is based on greed, but it’s worth noting that — as seen increasingly in the media — trauma is often not logical. It’s surprisingly common for victims of abuse — whether that is domestic, sexual, or otherwise — to continue relationships with their abusers without being able to process what is happening, and later understanding trauma to the point that it’s possible to make an accusation can take decades. With this in mind, Elden having endorsed and celebrated this image in the past does not prove that abuse did not take place. Where this actually complicates matters, however, is that Elden’s decision to associate himself with the shoot in the years following has potentially undermined the possibility of remaining anonymous given that the Elden of today is not identifiable in the photograph of 1991.
Elden’s claim that he has been exploited may be justified but whether this constitutes sexual exploitation might turn out to be too challenging for his legal team. If there’s no model release and it’s possible to prove that his parents were not made aware of the potential scope for how this image could be used, there could be grounds for a claim. Whatever happens, whether a naked infant constitutes child sexual abuse imagery could make for an interesting court case.
If you are a victim of sexual abuse, you can speak to someone anonymously by going to hotline.rainn.org.
If you have concerns that you are a minor-attracted person, please seek help by going to b4uact.org.
I’m no lawyer either, but looking at other legal cases, I don’t see how this guy has a chance. The US government tried to prosecute Jock Sturges in the 1990s for his photos of nude children and teens taken on beaches in France. They couldn’t get an indictment. Several states tried to get his books declared as child pornography in the courts. They couldn’t do it. Before Sally Mann published her family photos that included nude portraits of her children, she met with the FBI and legal council which all assured her that there would be no legal problems. There’s a moral and ethical debate about nude children in photos, but that isn’t relevant here. The law, as I understand it, makes a distinction between child nudity and child pornography. Nude does not equal sexual.
It seems to me that his problem should be with his parents. At a minimum that is a pretty horrible thing to do to your kid IMO as it will stick with them for the rest of their lives and they may not appreciate it.
Many people to this day have great difficulty accepting, or perhaps even caring, that acclaimed author Lewis Carroll—writer of the Alice In Wonderland and Through the Looking Glass children’s novels—enjoyed having little girls pose nude for his camera. It seems few know or care about the real Lewis Carroll.
“[Carroll] would ask mama if it was alright for him to photograph the little girl; and later on he would ask if he could photograph her in a costume; and eventually he would work his way up like a lover to, if he could photograph the child in the nude,” says retired Temple University English professor emeritus Donald Rackin, in a Great Books documentary (a copy of which I own). “We know that of course he was refused sometimes, but it was astounding how many mothers said, ‘go ahead’.”
Acclaimed writer and commentator Will Self has stated: “It’s a problem, isn’t it, when somebody writes a great book but they’re not a great person.”
As a prestigious figure, instead of being reprimanded or thrown into a Victorian-era prison, he continued taking his child photos. Carroll’s ability to get away with his perverted predilection for such photography may have been but indicative of the societal entitlement he enjoyed, even as an oddball loner.
Yet some feel Carroll was unfairly misunderstood. According to Hollywood Reporter guest columnist Will Brooker, who also authored Alice’s Adventures: Lewis Carroll in Popular Culture, “Lewis Carroll is treated [by his critics] like a man you wouldn’t want your kids to meet, yet his stories are still presented as classics of pure, innocent literature … Compared to some of our celebrities—the sportsmen, film directors and singers who commit real crimes like assault and abuse and are still welcomed back by fans—Lewis Carroll was a regular saint.”
I don't really get it.. or at least.. I don't get the "why now". When for years and years Elden has made sure that the world knew that HE was the baby in the image, rein-acting the scene multiple times, year after year.. promoting, in a way, his own child pornography. And being proud of it. If it really was a problem, he wouldn't/shouldn't have done that over the years.
If he didn't pull the attention to that image, and associate his name to that image, no-one would have even remembered it. I hardly think a tinder-date would go "hmm.. you look familiar.. " from a baby photo.
So, if you ask me, it looks like he hasn't changed much over the years. Still a crybaby reaching out for money.
I cannot confirm the validity of the most recent claim, but the issue of why now seems to be related to an issue that the remaining members of the band would not show up for an art opening containing this guys work. Whether that is true or not, I cannot confirm. I am also with you on "why now?"
He’s trying his luck in the hope of making some money.
No-one would ever know it was him in the picture unless he told people. Or unless he re-created the scene multiple times and posted the images on social media.
Nor is it ‘child porn.’ It’s a picture of a baby in a swimming pool. Anyone who finds that erotic would probably find any random picture of any random baby erotic.
Nice try, but little chance of success, I’d say. Any judge with an ounce of sense would throw the case out of court.
As a children photographer all I can say is that small children are people to. Even newborn. So I react negative on ridiculous poses beyond dignity. The should pay him some money and be done with it. Nobody likes to here there penis exposed and on a album cover.
Inasmuch as he has been publicizing it making money on it himself...apparently he does like it.
This is what is called a "nuisance" claim. The strategy is to have the defendant make a simple business decision: is it cheaper to offer and pay an amount to settle the matter OR, spend money defending and go to trial? If it is cheaper to reach a settlement rather than take a chance at trial, the rational defendant will try to settle the matter. However, if there is no possibility of a settlement (not enough money offered or either side insists on their day in court) then you're off to visit a judge and possibly a jury. Either way, it's a waste of time and money.
I hope they countersue for lawyer's costs after this frivolous suit gets dropped. Put him back into oblivion.
In many countries other than the US, the rule is the "loser pays the winner" some form of costs. It may not be full payment, but at least some form of payment is usually awarded. This is done to discourage frivolous
and vexatious law suits and to encourage settlement. As I understand it, the US does not have this.