This article was originally featured in our All Rise newsletter on September 6, 2021. Follow the link to subscribe.

The infant featured on the cover of Nirvana’s 1991 landmark album, "Nevermind," is now an adult and has lawyered up.

Spencer Elden, who is now 30, is featured nude and swimming toward a dollar bill on a fishhook on the cover of the iconic album, which features grunge rock anthems including “Smells Like Teen Spirit” and “In Bloom.” He is represented by the Marsh Law Firm in a suit against multiple defendants—including record executives, members of the former band and the survivors and executors of the estate of late front man Kurt Cobain—in a claim alleging the cover “constitutes a lascivious depiction of Spencer’s genitals which are the focal point of the image.”

“Based on well-established case law, a lascivious depiction of a child’s genitals can be considered child pornography; overt sex acts are not required,” said Marsh Law Firm, whose senior counsel Robert Y. Lewis is named on complaint as representing the plaintiff in U.S District Court in the Central District of California. “The explicit nature of the "Nevermind" album cover, which has always been controversial, meets the legal definition of commercial child pornography.”

"Nevermind" has sold more than 30 million copies worldwide since its release and since it is still being distributed, a suit can be filed. Entertainment Weekly reported in 1992 that the family was paid $250 for the photo. According to the complaint, neither Elden nor his guardians signed a release authorizing the use of the image, and the plaintiff is seeking nearly $150,000 from each defendant.

“Spencer’s image created massive commercial success for Nirvana for which Spencer never received any compensation,” the Marsh Law Firm said. “Neither Spencer nor his legal guardians ever signed a release authorizing the use of any images of Spencer or of his likeness, and certainly not of commercial child pornography depicting him for worldwide distribution.”

The question of whether the image meets the standard of commercial child pornography, and the band’s participation in “widespread sexual exploitation and image trafficking," will be hotly contested, should a judge allow the suit to proceed. The question of Elden’s mental stress and suffering, which was also noted in the complaint, has received public backlash.

Elden has recreated the underwater photo, while wearing a bathing suit, several times over the years in conjunction with the album’s anniversaries and posted them online. Fans of the band have taken to social media to call out this conduct as well as interviews Elden has given over the years in which he expressed mixed feelings about being featured.  

Anthony Gair is a name partner at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, a firm that has handled several sexual abuse cases, including securing the largest award for an individual sexual abuse victim in New York. Gair and his firm are not involved in the Elden case, but he commented on how the plaintiff’s social media presence and public interviews may hinder his argument. 

“The fact that Elden has given interviews and recreated the pose over the years will negatively affect his credibility as to his claim that the broad distribution of the ‘child pornography’ has caused him severe physical, emotional, reputational and financial harm,” said Gair, who Best Lawyers® has named New York City’s “Lawyer of the Year” for Product Liability Litigation–Plaintiffs in both 2011 and 2018. “This is a reason a plaintiff, prior to deposition, must be told to tell the truth. If the deposition testimony does not conflict with what is shown online, it will not affect credibility.”

 

Justin Smulison is a professional writer who regularly contributes to Best Lawyers. He was previously a reporter for the New York Law Journal and also led content and production for the Custom Projects Group at ALM Media. In addition to his various credited and uncredited writing projects, he has developed global audiences hosting and producing podcasts and audio interviews for professional organizations and music sites.