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The man who, as a baby, was featured on the front of Nirvana's now-iconic "Nevermind" album cover is now suing basically everyone involved in the album (and one person who was not), alleging they were participants in his commercial sexual exploitation as a child.
Spencer Elden, 30, filed a lawsuit in the U.S. District Court of Central California on Thursday against Courtney Love, the executor of Kurt Cobain's estate, Cobain's surviving bandmates Dave Grohl and Krist Novoselic and every label ever attached to the record, among other defendants.
The lawsuit claims three basic violations of federal criminal law for which Elden and his lawyer are requesting civil relief: that the image of Elden on the cover is inherently an image of child sexual exploitation (colloquially known as child pornography) under the law, and that it depicts a specific "sexually explicit conduct"; that the defendants possessed and distributed the images of child sexual exploitation via interstate means, including to minors who bought the album; and that the creation of the album cover and the distribution of it involved Elden in a commercial sex act and thus a child sex trafficking venture.
The image of Elden on the album cover depicts him as an infant naked, swimming towards a fish hook baited with a dollar bill that was inserted into the image after the photo was taken — which Variety pointed out "has generally been understood as a statement on capitalism."
Elden's lawer, Robert Y. Lewis of the New York-based Marsh Law Firm (which says it specializes in representing victims of sexual exploitation and abuse) characterizes the image in the lawsuit as follows: "Cobain chose the image depicting Spencer — like a sex worker — grabbing for a dollar bill that is positioned dangling from a fishhook in front of his nude body with his penis explicitly displayed."
Lewis also describes the image as "an explicit image which intentionally focused on Spencer’s carefully positioned enlarged genitals," "an image lasciviously displaying Spencer’s genitals on a worldwide scale" and "an image which focused on Spencer’s genitals to increase the shockingly obscene nature of the image."
That's probably because the definition of an image of child sexual exploitation under federal law requires "the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct," or the facsimile thereof, and includes "lascivious exhibition of the anus, genitals, or pubic area of any person."
Lewis also notes that Elden and his guardians did not sign a legal release for the use of his photograph and received no compensation, though Variety reported that Elden has previously stated that his parents received $200 after the photoshoot with Weddle, who the NY Post notes was a friend of theirs.
Elden, who had a "Nevermind" chest tattoo when he recreated the photoshoot in 2016 — it was his third time recreating the shot, according to Variety — has expressed mixed feelings about his brush with fame over the years. He's repeatedly told interviewers that he's upset at the lack of compensation for the commercialization of his image and that he feels strange knowing people saw him naked as a baby.
In 2016, the Los Angeles-based artist told Australia GQ that he had tried to reach out to the photographer, Weddle, and the remaining members of Nirvana to be a part of an art show he was putting on and hadn't heard back.
"I was getting referred to their managers and their lawyers. Why am I still on their cover if I’m not that big of a deal?" he said at the time.
His lawyer Lewis claims in the suit that there is a long history of using "sexually explicit material depicting a child or outright child pornography." As evidence, he cites Van Halen's "Balance," which featured a pair of (not real) conjoined children of indeterminate gender without shirts on a seesaw, Blind Faith's eponymous album, which featured a compensated professional model according to Rolling Stone and the extremely controversial cover of The Scorpion's 1976 "Virgin Killer," which the FBI reportedly investigated as child pornography in 2008 but never charged anyone over.
In addition to Grohl, Novoselic, and Love, the suit also names: Nirvana LLC; Cobain himself; Chad Channing, the original Nirvana drummer who departed the band before "Nevermind"; the two managers of Kurt Cobain's estate; the photographer behind the image, Kurt Weddle; the art director behind the album, Robert Fischer; and all the existing or defunct record companies that were ever involved in producing or distributing the album, including its current label, Universal Music Group.
The suit demands at least $150,000 from each named defendant, or $1.8 million (plus his lawyer's fees and other litigation costs), citing the section of federal law that allows anyone who was an alleged victim of federal child sexual exploitation statutes to sue for their injuries "regardless of whether the injury occurred while such person was a minor," and determines that the amount of the injury is "no less" than $150,000.
However, that same law contains a statute of limitations, which requires that the complaint be filed either 10 years after either the violation or discovery of the injury from the violation or "not later than 10 years after the date on which the victim reaches 18 years of age." (The trafficking statute under which Elden, 30, is also suing has the same statute of limitations.)
There is no statute of limitations under federal law for the criminal acts alleged by Elden and his lawyers for which they are seeking civil relief. However, Kurt Cobain's FBI file, released earlier this year, contains no reference to any criminal investigation into the photoshoot with Elden or the distribution of "Nevermind."
The lawsuit does not explicitly address the statute of limitations, but does note that Elden has been aware of and distressed by the cover art for most of his life, stating: "The permanent harm he has proximately suffered includes but is not limited to 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."
In Tweets, Elden's law firm referenced the fact that news coverage of the lawsuit didn't show the full cover art from the "Nevermind" album. "So if this is not commercial child pornography then why are all the tabloids censuring 'art?'" they wrote in one, referencing a TMZ write-up of their case.
"Read the facts," they wrote in another. "Curious that so many posters, critics, social commentators put everything out there except the un-edited picture. Even the band thought it was child exploitation."
That is an apparent reference to a section of their own lawsuit in which they wrote — citing Time — that in reaction to record company's objections to the cover art, "Cobain agreed to redact Spencer’s image by releasing the album with a sticker strategically placed over Spencer’s genitals with the text: “If you’re offended by this, you must be a closet pedophile.'"
A court date has not been set.
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