Nirvana fans could be forgiven for thinking they were reading The Onion this week when the news broke that Spencer Elden, who as an infant was photographed naked in a swimming pool for Nirvana’s iconic Nevermind album cover, is suing the band, claiming that the famous image constitutes child pornography.
Elden’s representative at the Marsh Law Firm say Elden was “exploited as a child and was never able to give consent when a picture exposing his naked genitals was used on the cover of Nevermind,” and in a statement to Yahoo Entertainment the firm even alleged that the 30 million-selling album’s “commercial success was due to the controversial cover. … Nirvana used commercial child pornography depicting Spencer as an essential element of a record promotion scheme commonly utilized in the music industry to get attention wherein album covers posed children in a sexually provocative manner to gain notoriety, drive sales, and garner media attention, and critical reviews. And it worked.”
"Nirvana exploited me when I was a baby to sell their music, but there is a person behind every image,” Elden said in a statement. “I'm just asking the band to do what they should have done 30 years ago and redact my genitals from the image out of respect for my privacy. If the world could forget about it, then maybe I could forget about it too.” The Marsh Law Firm also released the following statement: “Our client Spencer Elden never had a choice. Nirvana’s use of our client’s picture in their album cover is nothing less than child exploitation. This is an issue of consent — something that our client never had the opportunity to give.”
While it seems odd that Elden, now age 30, would wait until now to file his federal complaint filed in the United States District Court in the Central District of California, one of his attorneys, Maggie Mabie, stresses, “The law still allows for Spencer to file his lawsuit and he is acting now because he wants his privacy to finally be respected for the first time in his life.” Another one of his lawyers, Robert Y. Lewis – who specializes in child pornography, crime victims’ rights, criminal restitution, and copyright cases — has an 85 percent win record on cases going to verdict, according to his profile page on the Marsh Law Firm website. So, is it possible that Elden has a real case here?
Bryan Cunningham, of counsel to Los Angeles-based law firm Zweiback, Fiset & Coleman, and Michael Ackerman, a Pasadena, Calif.-based entertainment attorney who has represented record companies, music publishing companies, artists, managers, producers, documentary filmmakers, reality TV participants, and others in negotiation and drafting of contracts and litigation for more 30 years, reviewed Elden’s full complaint and then communicated with Yahoo Entertainment via email to answer the above question. (Full disclosure: Spencer Elden’s mother was a friend of Ackerman’s ex-wife, although Ackerman does not recall ever meeting Spencer or either of his parents.) Below, they break down Elden’s claims and the likelihood that he could prevail in a court of law.
Yahoo Entertainment: OK, so on the surface, this seems to be a ridiculous lawsuit, at least to laypeople reading about it. But how likely is it that Spencer Elden could win this case, if it were to go to trial?
Bryan Cunningham: Predicting what juries may do — particularly in a provocative and emotional case like this — is difficult, and a lot will depend upon the evidence a court allows and how the court instructs the jury on issues like intent and the definitions of material that violates the relevant laws. I think Mr. Elden would face an uphill battle. First, artists’ use of images — particularly not explicitly sexual ones — to sell their art, is not the core type of conduct the federal child pornography laws were intended to address. This is particularly true of the federal “human trafficking” claim (18 USC section 1595) which is not only a massive overreach here but, in my view, trivializes real human trafficking. Second, the album cover has been generally understood to be a commentary on capitalism rather than a sexual depiction of a baby. Third, though the complaint makes a great deal about the lack of a written release, it appears that Mr. Spencer’s parents consented to the photograph at the time — and were paid for it. Finally, and perhaps most importantly, is Mr. Elden’s own conduct long after he was aware of the photo and how it was used, assuming initial reports of his conduct are accurate, including getting a Nirvana-related tattoo and posing repeatedly [on four different occasions to commemorate Nevermind’s anniversary] to recreate the photograph well into his adulthood — and the fact that he has never litigated this in the intervening decades.
Michael Ackerman: From what I've read, [by posing for] recreations of the photo in subsequent years [in swim trunks]… even as an older child and then later as an adult, I think Elden would have a tough time demonstrating that he was sexually exploited in light of that. Furthermore, by having participated in recreations of the cover photo, it's hard to argue that he suffered permanent emotional distress. Victims of abuse don't publicly reenact their abuse for publicity.
The suit is asking for at least $150,000 from several defendants, including surviving Nirvana members Dave Grohl and Krist Novoselic; original Nirvana drummer Chad Channing; Nirvana frontman Kurt Cobain’s widow and executor of his estate, Courtney Love; Cobain estate managers Guy Oseary and Heather Parry; Nevermind photographer Kirk Weddle and art director Robert Fisher; and several record companies. Could he really get money from all of these parties?
Ackerman: The damages claimed are unspecified, and in order to claim damages they must be ascertainable. I don't know they could possibly claim as damages flowing directly from his appearance on the Nevermind album cover. The cover of Nevermind bears no relationship whatsoever to [other albums to which it is compared in the plaintiff’s complaints, such as] Blind Faith's cover depicting an 11-year-old girl who was naked from the waist up, or Van Halen's Balance, which depicts conjoined twins, or Scorpions' Virgin Killer, which actually depicts a naked child in a sexually provocative manner. Nevermind is nothing like that. … I cannot imagine how he would prove "lifelong loss of income earning capacity," as alleged in paragraph 112. Seems like a big stretch to me. To the extent he suffers embarrassment which necessitated psychological treatment or medical treatment, as alleged in paragraph 112, no one would ever have known that he was the baby on the cover had he not told someone he was or publicized that fact, both of which he did. He could have remained completely anonymous, yet he chose not to do so.
Do you have any idea why original Nirvana drummer Chad Channing is also named as a defendant, even though he had been replaced by Dave Grohl in 1990, before the cover photo was shot or Nevermind was even recorded?
Cunningham: My guess is that Mr. Elden’s lawyers wanted to include as many defendants as possible to maximize the potential payout and media impact of the case. Also, it may not be publicly known whether Channing profited from the proceeds of Nevermind over the years under some arrangement with the other band members.
Ackerman: Chad Channing wasn't even a member of the band by that point; if I recall correctly, he played on only one song and likely wasn't a royalty participant. Although the complaint alleges that "at all relevant times, Channing was a drummer of Nirvana LLC" — easily fact-checked, but not done, evidently — Channing was not. However, I don't know if he was a member of the corporation or partnership the band formed; that’s possible. According to a quick online search, MCA Music Inc. is a subsidiary located in the Philippines, not in the U.S., and therefore not subject to U.S. laws unless specific reason for jurisdiction is pleaded. I suspect they intended to sue the music publisher, but even they would have no reason to be included in the suit.
As I said, multiple record labels, existing and defunct, are also named…
Ackerman: Why is Warner Records named? To the best of my knowledge, they had nothing to do with Geffen Records in the time period concerned — even in the complaint they acknowledge that in 1991 Universal took over distribution and Nevermind was released in September 1991. To tell you how much of an outsider this lawyer is and how shoddy his work is, “DCG Records” is repeatedly referred to, when the actual company name was DGCRecords. It's referred to as DGC later in the complaint, but not where it's defined or introduced — once again demonstrating sloppy work.
So, what is the statute of limitations in this situation? Obviously this is a three-decade-old, widely seen image, and Elden has been a legal adult for 13 years, yet this suit is only being filed now.
Cunningham: There is no statute of limitations on child pornography under federal law, but I do think any jury would have to seriously weigh the fact that Mr. Elden has waited so long to sue and… has taken actions undermining his current claims.
Ackerman: It's interesting to note that they didn't sue under violation of privacy or civil rights laws (as to one's image) — obviously because the statute of limitations would have run on such claims long ago, but they do allude to privacy rights in paragraph 164-172.
In your professional opinion, does this swimming pool image possibly fit the legal definition of child pornography?
Ackerman: The cited cases at page 17 in the footnote do not seem to support their theory. U.S. v. Dost, for example, cites the requirement in the statute (18 USC 2255) that there be "lascivious" exhibition of the genital s— to me, babies are naked a lot, and I'm not aware of any case which deems the mere nakedness of an infant to be lascivious, and it's real leap to claim that here. The Dost factors cited in paragraph 110 include "whether the Setting is sexually suggestive, i.e., in a place or pose generally associated with sexual activity” — and I just don't see that here. It's a baby swimming naked in a pool; that happens all the time without any sexual activity. In addition, another factor cited, "whether the child's conduct suggest sexual coyness or a willingness to engage in sexual activity," is also absent here. Finally, the key determinant in my view — another Dost factor citing "whether the conduct is intended or designed to elicit a sexual response in the viewer" — is obviously absent here. Furthermore, the Dost case they cite cites Miller v. California, 413 U.S. 15 (1973) a Supreme Court case which defined obscenity standards which are not met here. Thus, in my view, it's not child pornography, and therefore several of the cited statutes in paragraphs 116-134 do not apply.
Paragraph 107 is essential— it defines child pornography under 18 USC 2256(8) and that definition includes "sexually explicit conduct"— what is the sexually explicit conduct the baby is engaged in? Mere nudity for an infant does not rise to the level of sexually explicit conduct to me. I've never litigated a child pornography case, but surely there must be some authority in statute or case law that says the nudity of an infant is not sexually explicit conduct on its own for child pornography purposes. Otherwise, every parent in America who had ever taken a bathtub photo of their child — and everyone has — would be guilty of child pornography under the theory advocated in this complaint.
Obviously Elden was too young to consent to posing for this photo in 1991, but his parents were on board and allowed the shoot to happen. How does their parental consent affect the case, especially since Elden is claiming that no paperwork authorizing use of the image was ever signed?
Ackerman: From what I have read, his parents were paid either $200 or $250 for his appearance in the photo. I would have to imagine that in order to receive the payment, they had to have signed something, although paragraph 104 alleges that they did not. If a signed writing exists, that would seem to vitiate his claim. Also from what I had read, [Kirk] Weddle [the photographer] was friends with the kid's father; that's how the kid got in the photo in the first place. Maybe that's why there's no signed writing? But the argument can be made that by accepting payment and knowing the purpose of the photo, there is tacit permission.
The negligence claim is an interesting one — I would think there would be a duty to ascertain whether rights had been obtained and to check a signed release, especially for an infant. To the extent that no one checked or there is no signed release, then there might be a valid negligence claim: that there exists a duty on the part of a party to take care of or do something else for another party, to the extent that such a duty exists here, and I'm sure there is one, if no one checked a signed release or there isn't a signed release there might be some liability under a negligence theory. The harm suffered however, was not foreseeable, so I don't know if he can collect on his alleged damages even under a negligence claim. I say it's not foreseeable because who would recognize that infant in the world today, unless said person declared themselves to be that infant?
So, what do you think might happen next? Do you feel this would actually go to trial, or that the defendants will settle just to make this go away?
Cunningham: My guess is that this case will settle, in part because of the uncertainty of going to a jury trial in a case like this. A jury following proper instructions might well find for the defendants here, including because some of Mr. Elden’s past statements could make him seem mostly in it for the money. On the other hand, a jury hearing how much money the defendants have made in part because of the image and how little he or his parents were paid might disregard jury instructions and award him a significant sum of money out of a sense of basic fairness, even if they are not persuaded that the defendants actually violated the child pornography statutes.
Ackerman: Where this may end up is with the redaction of the penis in the cover photo, because that seems to be the crux of the whole complaint. However, if that was what he really wanted, that's not specified in the complaint, which really seeks mostly money —and injunctive relief in paragraph 173 which would bar distribution of the album cover photo. In other words, a way to get money by the leverage of forcing the record company to destroy existing covers and change the cover going forward. The bottom line for me is that the Nevermind cover is certainly attention-grabbing and was designed to be so, but not in a sexually provocative way. To characterize the Nevermind cover as a sexually explicit or provocative photo, the nudity of the infant notwithstanding, is a real stretch.
Representative for Dave Grohl, Courtney Love, and Kirk Weddle did not respond to Yahoo Entertainment’s request for comment, nor have they commented specifically about the case on social media.
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