Contributing Author: Bryan Sullivan
Spencer Elden, who was the naked baby in the pool on the cover of Nirvana’s iconic 1991 album Nevermind, is now suing, among others, Nirvana, the band members, Universal Music, and Geffen Records alleging claims of commercial child exploitation for using the naked photo of him and claims that he suffered trauma from it. This lawsuit is not only legally and factually frivolous, but also an insult to actual victims of commercial child exploitation.
As to the factual frivolousness, for years since 1991, it appears that Mr. Elden attempted to profit off of his participation in the iconic album. Indeed, six years ago, in an article he wrote in The Guardian, he stated, “It is a weird thing to get my head around, being part of such a culturally iconic image. But it’s always been a positive thing and opened doors for me… Sooner or later, I want to create a print of a real-deal re-enactment shot, completely naked. Why not? I think it would be fun.” This action alone is implied consent to the use of the photo and its distribution.
As further proof of the factual frivolousness, Mr. Elden claims a lack of consent to the photo, but last I checked, a 4-month-old cannot make decisions so it is his parents’ consent that is needed. Indeed, in the complaint Mr. Elden appears to admit that his parents voluntarily agreed to allow him to participate in the photo shoot and, indeed, actively participated in it. This means that the photo was consensual. If Mr. Elden is challenging that consent, then he is actually alleging that his parents are the worst type of parents who essentially prostituted their own baby for sexual purposes.
In regard to the legal frivolousness, Mr. Elden’s claims are based on federal criminal child pornography statues (18 U.S.C. 2255), but the photo on the album cover does not meet the definition of child pornography. 18 USC § 2256(8) defines child pornography “as any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit [emphasis added] conduct….” The key is “engaging in sexually explicit conduct”; it requires more than just nudity, which is the only sexual aspect of the album cover. Mr. Elden attempts to inject more sexuality into the complaint such as describing the baby in the photo as a “sex worker” because the baby is reaching for money or by alleging that actions were taken to focus on his genitalia. But, such allegations fail because there is no “sexually explicit conduct” in the photo. Nudity alone is not sufficient to meet the sexually explicit conduct.
Moreover, the photo fails to meet the U.S. Supreme Court’s three-prong test for obscenity as set forth in the landmark case Miller v. California. That test is: (1) whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Considering that this album cover has been widely distributed to and viewed by the public for 30 years, it is highly unlikely that a court will find the use of the photo as obscene. Furthermore, Mr. Elden’s allegations of what was discussed by the people involved in the album cover actually shows that the album cover is a serious artistic work.
In an effort to overcome the above described hurdles and to obtain $150,000 in damages per defendant, the complaint contains a litany of allusions to sexual exploitation and lack of consent claims and claims of “suffering lifelong damages” and uses extreme language in its description. But, piercing through those histrionics, it is clear that this case is not about commercial sexual exploitation and appears to be about one person seeking nothing more a payday. After all, how does someone go from claiming for years how the photo was a “positive thing” and now claims it has caused him tremendous emotional distress and has affected his “development and educational progress” and “loss of past and future wages.” Hmm, was Mr. Elden paid for the Guardian article?
Mr. Elden’s case is frivolous and should be dismissed quickly on an Anti-SLAPP motion, which is a special motion that protects First Amendment rights that also allows a court to require the other side to pay the defendants’ fees. This is the ideal case for such an award and one would hope the Court will ensure justice is done.
Worst of all is that this case takes away from the true victims of sexual assault, sex trafficking, and commercial child sexual exploitation. The true victims of such heinous crimes suffer severe lifelong trauma and for someone who spent years trying to profit off of a single photo that has been widely distributed for 30 years to make these claims, is an insult to society.
Bryan Sullivan, Partner at Early Sullivan Wright Gizer & McRae, advises and represents his clients as a legal strategist in all their business affairs. He has significant experience on the litigation and appeals side of the practice, as well as with entertainment and intellectual property contracts, investment and financing agreements, and corporate structure documents on the dealmaking side.