You may know Spencer Elden, or rather, you know him as a baby. A nude portrait of baby Elden swimming after a dollar has become an iconic image in music, gracing the cover of Nirvana’s groundbreaking 1991 album Nevermind. On Tuesday (Aug. 24), Elden filed a lawsuit to the Los Angeles federal court against the surviving members of Nirvana, alleging that the photo constitutes child pornography and both he and his parents did not consent to his likeness being used.
The story goes: Nirvana frontman Kurt Cobain conceived the idea after watching a program on underwater births. The stock footage of underwater births were too graphic, and images of swimming babies were too expensive. Instead, Geffen sent a photographer to take photos at a pool for babies, eventually settling on Elden, whose parents were friends of the photographer. Elden’s family was paid $200.
In the years since the photo was taken, Elden has had conflicting feelings on being known as the “Nirvana baby.” He had previously made headlines for recreating the photo as an adult (with swim trunks), and he even has “Nevermind” tattooed on his chest. In 2016, Elden did an interview with TIME Magazine where he told the magazine, “I got a little upset for a bit. I was trying to reach out to these people. I never met anybody. I didn’t get a call or email. I just woke up already being a part of this huge project. It’s pretty difficult—you feel like you’re famous for nothing, but you didn’t really do anything but their album.”
In the same interview, Elden expresses frustration for not being properly compensated for being an integral part of Nirvana’s image and music iconography as a whole, and revealed he was exploring legal actions against Geffen Records. While in public, he remembers thinking: ”’Man, everybody at this baseball game has probably seen my little baby penis,’ I feel like I got part of my human rights revoked.”
In 2011, Elden did an interview with CNN’s Don Lemon and said he does not receive royalties nor did anyone sign a model release. “It’s an interesting cover because I feel like it portrays the situation kinda well,” Elden said in regards to the dollar he’s reaching for on the cover. Elden’s lawyer Robert Y. Lewis argues that the dollar makes Elden look “like a sex worker.”
Nude photos of infants that are non-sexual in nature are generally not considered child pornography, although there is a gray area. The judge or jury generally evaluate the image while taking into consideration the context, intention and a myriad of other starting points to determine when an image goes from innocent to illegal.
In a 2011 interview with Eagle Rock Patch, Elden’s father Rick recalled how the shoot was made possible: “Babies have a gag reflex. If you blow in their face, they hold their breath. I blew in Spencer’s face and put him in the water.” The lawsuit emphasizes this fact, saying “To ensure the album cover would trigger a visceral sexual response from the viewer, Weddle activated Spencer’s ‘gag reflex’ before throwing him underwater in poses highlighting and emphasizing Spencer’s exposed genitals.”
The label considered using a less provocative image, and Cobain’s only provision was that they put a sticker that says “If you’re offended by this, you must be a closet pedophile.” Executives opted to leave the cover uncensored instead. Elden argues that the band promised his family it would be covered with the sticker.
The lawsuit also alleges that Nirvana “used child pornography depicting Spencer as an essential element of a record promotion scheme commonly utilized in the music industry to get attention,” arguing that the band exploited the shocking nature of the image to drive album sales. The suit is seeking $150,000 from each of the defendants which includes the band’s two remaining members Krist Novoselic and Dave Grohl, Courtney Love as executor Cobain’s estate, Cobain’s estate managers, photographer Kirk Weddle and various others including original drummer Chad Channing, who was replaced by Dave Grohl before Nevermind was recorded.
Revisit Paste’s list of the best albums of 1991 here.