Nevermind the Bollocks, Here's a Lawsuit

Law is a funny thing. It’s supposed to express and enforce social norms. However, sometimes, it can’t distinguish between a righteous complaint and a ridiculous con, especially when clever plaintiffs take advantage of ambiguous laws.

For example, on August 24, 2021, Spencer Elden sued Nirvana for using a photograph of him as a naked infant on the cover of their 1991 album Nevermind. But Elden didn’t claim copyright infringement, as you’d expect. He can’t; he isn’t the copyright owner. Instead, he claimed the photo is child pornography, so he’s entitled to restitution.

Unsurprisingly, Elden’s lawsuit was social media catnip, as intended. The hot takes came fast and furious. Most of them ridiculed Elden as a hypocritical grifter, grasping for one more payday from his 15 minutes of fame. But some were more sympathetic, pointing out that Elden never consented to have his picture taken, let alone used on the cover of an iconic album. Who is right? Maybe both or neither, depending on how you look at it. But first, let’s remember how we got here.

Who Is the Nirvana Baby

In 1991, Geffen Records hired Kirk Weddle to design the cover for Nirvana’s album Nevermind. The band wanted a picture of a naked baby underwater, grasping for a dollar bill on a fishing line, so Weddle photographed a bunch of babies in a pool at the Pasadena Aquatic Center. Kurt Cobain chose a photo of four-month-old Spencer Elden, in which Elden’s penis was clearly visible. Geffen objected but relented when Cobain ridiculed its objections, suggesting a sticker over Elden’s penis reading, “If you’re offended by this, you must be a closet pedophile.”

Today, the album cover comes off as callow, but at the time, people found it edgy and provocative, perfect for the grunge music Nirvana came to epitomize. Nevermind debuted at 144 on the Billboard charts but gradually rose to number one and went platinum. But that was only the beginning. As Elden observes, the album became a “climacteric” of American music, the apotheosis of grunge, and its single “Smells Like Teen Spirit,” the anthem of disaffected 90s youth.

Anyway, as Elden got older, he learned about his peculiar claim to fame. He mostly enjoyed his minor celebrity, introducing himself as the Nirvana baby, claiming he has the most famous penis in the music industry, recreating the album cover photo, and even getting the word “Nevermind” tattooed on his chest. But he also expressed some misgivings, telling MTV News, “Yeah, it’s kind of creepy that many people have seen me naked. I feel like I’m the world’s biggest porn star.”

Is the Album Cover Child Pornography?

Everything changed when Robert Y. Lewis of the Marsh Law Firm filed a lawsuit in a California federal court on Elden’s behalf. The complaint alleges that the photograph is child pornography and demands restitution under federal law. Marsh specializes in these claims and has won restitution for many victims. The difference is that the claims usually target obvious child pornographers. Calling Weddle’s photo child pornography is a stretch.

Lewis argues that the Nevermind album cover satisfies the statutory definition of child pornography because it “depicts a lascivious exhibition of Spencer’s penis and genital area.” And he claims Weddle intended to create child pornography by emphasizing Spencer’s penis and showing him reaching for a dollar bill “like a sex worker.”

But let’s be honest. Lewis is saying that any image of a naked child is child pornography. Maybe! After all, who’s to say what someone might find titillating? And yet, the law isn’t on his side. Typically, courts ask whether the photographer intended to create a pornographic image. Or, in the alternative, more disturbingly, they ask whether the defendant found a photo sexually arousing.

Here, no one seriously believes that Weddle intended to create a pornographic photo, that Nirvana wanted a pornographic photo, or that millions of consumers wanted a pornographic photo. Is it possible that the photo sexually aroused someone? Maybe. But that shouldn’t make Weddle, Nirvana, and Geffen liable for distributing child pornography.

Who Is Liable for Restitution?

The complaint is artfully pleaded to make Elden’s claim at least marginally plausible. The only named defendants are people and businesses that profited from Nevermind. But why? Under federal law, anyone who possesses child pornography is liable for restitution. So under Lewis’s theory, everyone who ever owned a copy of Nevermind—or really, anyone who ever saw the album cover—is liable. And Lewis is well aware! After all, Marsh’s business model is recovering restitution from wealthy pedophiles who collect child pornography.

Of course, Marsh is doing its best to defend the legitimacy of Elden’s claim. On August 25, 2021, Margaret E. Mabie, one of Elden’s attorneys, claimed that he was “seeking justice.”

But even the victim’s rights community was skeptical. For example, Carrie Goldberg, a prominent victim’s rights attorney, well-known for aggressively pursuing claims against abusers, said hell no.

So why is anyone sympathetic to Elden’s claim? Essentially, it boils down to the observation that everyone profited but him. Sure, Elden’s father got $200, and Elden got a CD and a stuffed animal, but everyone else got millions, and some people think he deserves a cut.

Was Spencer Elden Harmed?

I’m not so sure. Was Elden harmed? Who knows. But if so, he wasn’t harmed any more than any other kids whose parents agree to let them model or act. Did he get stiffed? Again, no. When Weddle took the photo, no one knew it would become iconic or that Nirvana would become famous. They were just another scrappy punk band trying to make good. Elden’s father was well compensated for his son’s labor. After all, plenty of albums tank and the cover models don’t return their pay.

Obviously, Elden is going to lose. The real question is whether his complaint is quietly dismissed or Lewis gets sanctioned. I hope it’s the latter. Everyone applauded when Judge Parker sanctioned Sidney Powell and the other MAGA lawyers for their frivolous election fraud claims. This lawsuit is the same. The court should let Lewis withdraw this complaint, but it should consider sanctions if he doesn’t.