Insight

Smells Like a Lawsuit

Spencer Elden was featured on an infamous Nirvana album cover nearly 30 years ago. Now he's suing for damages.

Nirvana’s "Nevermind" Baby Seeks Damages
JS

Justin Smulison

September 7, 2021 02:00 PM

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.

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

Related Articles

Protecting High-level Executives With the Apex Doctrine


by Sara Collin

The Apex Doctrine, developed to shield high-level executives from inappropriate depositions, is a beneficial asset to lawyers and clients, at least in the states where it’s been adopted.

Apex Doctrine Protects Executives

NYC Pay Transparency Law Gets New Start Date


by Justin Smulison

This historic law regarding pay transparency in New York City originally scheduled to take effect last week was rescheduled to Fall 2022.

NYC Stand Resolute on Pay Transparency

Court-ordered Restitution for Corporate Crime Is ‘Likely Here to Stay’


by John Ettorre

Best Lawyers highlights the Mandatory Victims Restitution Act and how victims are now utilizing beyond cases of violent crime.

Push for Restitution in Corporate Crime

Will Recent Boeing Settlements Create Tailwinds In Corporate Law?


by Justin Smulison

Prominent litigation against Boeing is setting a precedent of accountability, professionalism and commitment among company boards as well as ushering ESG further into the courtroom to help monitor and prevent safety issues.

Recent Boeing Settlements and Corporate Law

Racial Discrimination Suit Against NFL May End in Arbitration


by John Ettorre

A former Miami Dolphins head coach is up against the NLF in a discrimination case that is on a path to arbitration; the NFL remains focused on equality for their diverse coaching staff.

Arbitrating Discrimination Suit Against NFL

Opioid Settlement Clears One Obstacle, but There Is More To Go


by Rasha Aly

A recent court settlement is requiring a family most notable for their production of Oxycontin to pay billions to recovery organizations, a huge win in the battle against the opioid crises plaguing the country.

Opioid Settlement with Purdue Pharma

Newly Launched COVID-19 Litigation Project Offers Open Access To Pandemic-Related Court Judgments From Over 70 Countries


by Sara Collin

A worldwide database of COVID-19 cases is uniting more than 70 countries as judges, lawmakers and lawyers continue to navigate pandemic related litigation and the ways in which it’s evolving amid year three.

COVID-19 Worldwide Litigation Project

SEC Whistleblower Awards Are Spiraling. Could It Be Part of MeToo Movement?


by John Ettorre

The MeToo movement has had an unexpected impact on SEC-related whistleblower cases, and many are receiving substantial payouts for the financial fraud they are reporting.

Rise in Whistleblowing a Result of MeToo

Maxwell Verdict Shines Light on Human Trafficking Claims


by Justin Smulison

The Ghislaine Maxwell verdict brought the spotlight down on the insidious and ever-growing problem of global human trafficking, with more cases emerging in court.

Human Trafficking Illuminated by Maxwell Case

Facebook Whistleblower Testimony Shines A Light On Credibility Factor


by Justin Smulison

Landmark whistleblower testimony was provided on Capitol Hill which may have a national—and even worldwide—effect on how governments regulate Big Tech companies.

Capitol Hill Facebook Whistleblower Testimony

Hollywood Union Strike Threat is Playing Out Under Different Environment


by John Ettorre

Workers in Hollywood are threatening to strike if a deal with studios cannot be reached.

Hollywood Workers Threatening to Strike

Netflix Sued Over Alleged Defamation in Mega Hit The Queen’s Gambit


by John Ettorre

Netflix is facing a lawsuit from a real chess Grandmaster whose name was referenced inaccurately in The Queen's Gambit.

Netflix Sued Over Mega Hit The Queen’s Gambit

Bizarre Murdaugh Case Spotlights State-Based System for Regulating Lawyers


by John Ettorre

The drama surrounding the Murdaugh family case out of a small-town South Carolina court spotlights the need for better system regulations.

Murdaugh Case Spotlights Small-town Court

Prominent 9/11 Lawyer Still Racking Up Awards for Clients


by John Ettorre

Despite 20 years passing since the September 11 terrorist attacks, one lawyer is still working to help families of victims recover compensation.

Prominent Lawyer Helping 9/11 Clients

Biden Targets Non-Competes, But They Still Have Their Place


by John Ettorre

Limitations on non-compete agreements are increasing, aided by an executive order by President Biden in July.

Biden Targets Non-Compete Agreements

Trending Articles

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez


by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Famous Songs Unprotected by Copyright Could Mean Royalties for Some


by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Best Lawyers: Ones to Watch – The Future of Legal Talent Looks Bright


by Justin Smulison

Best Lawyers: Ones to Watch is launching its second edition in the United States, and after talking with both a company leader and esteemed lawyers on the list, the importance of this prestigious list is evident.

Best Lawyers: Ones to Watch in America 2022

Johnny Depp and Amber Heard: The Best Lawyers Honorees Behind the Litigation


by Gregory Sirico

Best Lawyers takes a look at the recognized legal talent representing Johnny Depp and Amber Heard in their ongoing defamation trial.

Lawyers for Johnny Depp and Amber Heard

Why Cariola Díez Pérez-Cotapos Developed Its Own Legal Tech


by Best Lawyers

Juan Pablo Matus of Cariola Díez Pérez-Cotapos, 2019 "Law Firm of the Year" award for Corporate and M&A Law in Chile, discusses his firm's joint venture with Cognitiva in creating Lexnova, a legal AI system.

Cariola Díez Pérez-Cotapos Interview

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Announcing the 2022 "Best Law Firms" Rankings


by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards

Announcing the 2022 Best Lawyers in Canada™


by Best Lawyers

The results include an elite field of top lawyers listed in the 16th Edition of The Best Lawyers in Canada™ and 1st Edition of Best Lawyers: Ones to Watch in Canada.

Announcing the 2022 Best Lawyers in Canada™

Education by Trial: Cultivating Legal Expertise in the Courtroom


by Margo Pierce

The intricacies of complex lawsuits require extensive knowledge of the legal precedent. But they also demand a high level of skill in every discipline needed to succeed at trial, such as analyzing technical reports and deposing expert witnesses.

Cultivating Legal Expertise in the Courtroom

Announcing The Best Lawyers in France™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from France.

Blue, white and red strips

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Caffeine Overload and DUI Tests


by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

Announcing the 2022 Best Lawyers™ in Australia


by Best Lawyers

The results include an elite field of top lawyers and firms.

Announcing the 2022 Best Lawyers™ in Australi

Announcing The Best Lawyers in Australia™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from Australia.

The Best Lawyers in Australia™ 2023

Announcing The Best Lawyers in The United Kingdom™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from the United Kingdom.

The Best Lawyers in The United Kingdom 2023