The man photographed as a baby swimming naked in a pool, which became the iconic album cover for Nirvana’s “Nevermind,” has filed a lawsuit 30 years later alleging child pornography.
In 1991, Spencer Elden, now 30, was photographed as an infant in a swimming pool with his penis exposed.
The image was used for the “Nevermind” album cover with a dollar bill on a hook digitally dropped into the photo, which the baby appears to be swimming towards enthusiastically. It was viewed as a metaphor for capitalism.
Generally speaking, non-sexualized nude photos of infants aren’t considered child pornography under law.
But Robert Y. Lewis, an attorney representing Elden, says in a lawsuit filed with the U.S. District Court for the Central District of California that the inclusion of the dollar bill makes the baby appear “like a sex worker.”
“Defendants intentionally commercially marketed Spencer’s child pornography and leveraged the shocking nature of his image to promote themselves and their music at his expense,” reads the lawsuit which was obtained by Variety.
Lewis adds in his filing, “Defendants used 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.”
In 2008, Spencer’s dad, Rick Elden, told NPR that a friend of his, photographer Kirk Weddle, called him and said he was working on an album cover project. He asked if he could shoot baby Spencer in a swimming pool. The shoot apparently lasted 15 seconds and dad Rick says he was paid $200.
— John Chapple (@johnchapple) September 24, 2016
Over the years, Elden has ‘recreated’ the pose (wearing a swim suit) several times as a teen and adult on the album’s 10th, 17th, 20th and 25th anniversaries.
“The anniversary means something to me,” Elden told the New York Post in 2016 when photographer John Chapple paid him $200 to do it again. “It’s strange that I did this for five minutes when I was 4 months old and it became this really iconic image.”
“It’s cool but weird to be part of something so important that I don’t even remember,” he added.
But today, Elden is suing for $150,000 from each of the defendants named in his lawsuit including the surviving band members Krist Novoselic and Dave Grohl; Courtney Love, executor of Kurt Cobain’s estate; Heather Parry and Guy Oseary, managers of Cobain’s estate; photographer Weddle; art director Robert Fisher; and several of the record companies (some now out of business) that distributed the album over the years.
Variety notes that even Chad Channing, Nirvana’s original drummer who had been replaced by Grohl in 1990 before the album was recorded or the photo was taken, is named in the lawsuit.
The man who was the baby on the Nirvana album cover: I'm suing them for using me for "Child Pornography".
Also the man who was the baby on the Nirvana album cover for the past 30 years: pic.twitter.com/vLlBV5Nn9v
— TASK the Ol’ Nerdy Bastard #BLM #StopAsianHate (@UpToTASK) August 25, 2021
“Nevermind” has reportedly sold over 30 million copies since its release in the fall of 1991. The album hit No. 1 on the U.S. Billboard 200 in January 1992 and has spent at least 335 total weeks on the Billboard 200.
The filing alleges that no payment beyond the initial $200 was ever offered. Additionally, Lewis claims in the lawsuit that “neither Spencer nor his legal guardians ever signed a release authorizing the use of any images of Spencer or of his likeness.”
Putting a point on the porn aspect of the lawsuit, the attorney adds, “And certainly not of commercial child pornography depicting him.”
The lawsuit also claims Elden has suffered “permanent harm” which includes “extreme and permanent emotional distress with physical manifestations, interference with his normal development and educational progress, lifelong loss of income earning capacity, loss of past and future wages, past and future expenses for medical and psychological treatment, loss of enjoyment of life, and other losses to be described and proven at trial of this matter.”