Is Spencer Elden suing Nirvana?
As a baby, Spencer Elden appeared on what became one of the most iconic album covers in music history. Now, a month before Nirvana's "Nevermind" turns 30, he's suing the band for child pornography. USA TODAYMan who appeared on Nirvana's 'Nevermind' album as a baby sues band for child pornography
Who was the baby on the Nirvana album?
Spencer Elden appeared on the album cover as a four-month-old child chasing a dollar bill. Spencer Elden, whose underwater photo as a baby featured in one of Nirvana's most popular covers for the Nevermind album, has moved court against the rock music band. NDTVBaby On Nirvana Album Cover Sues Band Over Child Pornography
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Did Kurt Cobain Say of 'Nevermind' Album Cover, 'If You're Offended by This You Must Be a Closet Pedophile'?
27 August, 2021 - 08:30pm
This quote resurfaced in August 2021 when the model who portrayed the baby, Spencer Elden, filed a lawsuit against the band claiming that he was exploited and that the artwork bordered on child pornography.
This is a genuine quote from Cobain.
Art Director Robert Fisher was one of the first to suggest that the baby’s genitalia could be censored if anyone thought that it would be problematic. A photograph showing early concept art for the album’s cover includes two written comments by Fisher.
Fisher wrote: “If anyone has a problem with his dick we can remove it.”
Cobain responded to Fisher’s comments by saying that they could censor the nudity with a sticker, reading “If you’re offended by this, you must be a closet pedophile.” This incident is recalled in a passage from Michael Azerrad’s book “Come As You Are: The Story of Nirvana.”
The only thing was, the baby’s penis was quit visible. “If there’s a problem with his dick,” Fisher said, “we can cut it off.” Some people in the Geffen/DGC sales department did worry that the traditionally conservative chain stores might object to the penis and Fisher even went so far as to begin preparing cover with the penis airbushed out. Kurt had anticipated some outcry as well, and has already composed some copy to put on a sticker over the problematic member. It read, “If you’re offended by this, you must be a closet pedophile.”
Cobain recounted his version of these events during an interview for “Hot Metal” with journalist Robyn Doreian in 1991. In Cobain’s version, he doesn’t quite take credit for the idea, instead saying that “we prepared” to deal with censorship issues with a sticker.
As with most artists signed to the Geffen label, Nirvana have complete artistic control over everyting they do.
“I designed out T-shirts, and we have had control over things like how long we tour and who we tour with, and we had control over what songs we recorded.”
Whilst on the subject of the aesthetically pleasing cover of Nevermind, I enquire as to whether the boy is actually a photo of Kurt as a little tacker.
“No, it’s not,” he remarks drly.
Has there been any trouble from censorship groups such as the PMRC for blatantly displaying a willy on the cover?
“No, surprisingly not. We prepared to alleviate that problem if anyone were to freak out about it by putting a sticker on it saying, “if you are offended by this, you must be a closet pedophile.'”
The sticker wasn’t needed in the end as the album was released without any alterations to the baby’s body. But now, just over 30 years after the album’s release, the band is being sued, as Elden alleges that the picture violates child pornography laws.
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YOU have to at least admire the creativity of it.
After decades of self-confessed benefit from appearing on the cover of one of the most seminal albums ever made, the Nirvana Nevermind baby is suing those involved in the creation of the famous photograph. You know the one: a chubby infant, arms outstretched, bobs naked underwater, his gaze trained on a dollar bill suspended on a fish hook.
It was designed to generate controversy and what a success - 30 years on the debate persists.
Lawyers acting for Spencer Elden have filed a federal lawsuit against the estate of Kurt Cobain, his widow, Courtney Love, and his former bandmates, David Grohl and Krist Novoselic, among others.
Mr Elden, who was four months old when the photograph was taken, alleges that the parties involved "produced, possessed, and advertised commercial child pornography" from which they profited.
In previous interviews, the photographer who took the picture has spoken of having a good and long standing relationship with his subject - what a shock for him to be accused of creating child porn. The suit alleges that the image likens the baby Spencer to "a sex worker" due to the addition of a dollar bill.
Unclothed and innocent, the baby swims instinctively towards the cash, and here, three decades on, the adult makes a straight line right for the same.
On social media, Elden has had very little sympathy. Over the years he had willingly recreated the Nirvana album front - albeit always in shorts. Detractors say he has spent a lifetime cashing in on his easy fame: using it to meet "hot chicks" (his words, not mine); to meet celebrities; as a foothold into his career as an artist.
With the very specific lack of empathy society reserves for the rich and/or famous the law suit has been allowed very little truck indeed.
Over the year, though, Elden has expressed mixed feelings about the picture. In 2016 he said: "Recently I’ve been thinking, ‘What if I wasn’t OK with my freaking penis being shown to everybody?’ I didn’t really have a choice."
In the same year, to the New York Post, he said: "It’d be nice to have a quarter for every person that has seen my baby penis."
That conflict - from "Yay! Hot chicks!" on one hand, to "The world has seen me naked", on the other - is entirely understandable.
Elden's father once said he had received $200 for the photoshoot but didn't know what it would be used for until he saw his baby son blown up to unnatural proportions on the wall of Tower Records in Los Angeles.
Mr Elden seems to have little beef with his parents for their part in his fame. But the situation sounds a salutory warning to others who use their children as a revenue stream.
With the rise of social media came endless debates about whether it was right to share children's photographs on Facebook or Instagram or the like.
A snappy portmanteau was coined: "sharenting". And the debate became so heated that journalists would even stretch so far as to drag in French law as a way to scare off the grown ups from child posting. A few years ago there was a spate of cautionary articles about French parents leaving themselves open to £35,000 fines and a year in prison for posting pictures of kids online due to the country's strict privacy laws.
Would that happen here? Would hundreds of proud mums, merely keen to show off their wean's hilarious attempt to use a spoon, end up in Corntonvale.
Of course not, but perhaps more's the pity. Those fretful days seem such innocent times in comparison to the homespun stars of the modern age.
Family vlogs are an untrammelled money-spinner. Parents and their children make cute or funny videos of their home life and post them on a personal YouTube channel, gaining followers and, if all goes well, advertising money.
Those with a distinct USP - food vloggers or Mormons or parents with 12 kids - can earn thousands of pounds a month from the videos. Most are wholesome larks, but there have been some appalling situations.
There was a craze for "cake smash" videos, where wee ones celebrating their first birthday are given a cake to literally smash up. Toddlers reacting to cakes - so sweet, so relatable. But a craze also developed for pranking children and filming it.
One vlog, DaddyOFive, saw the children involved placed under emergency custody after the children's father and step-mother were deemed to be abusing the children for the sake of engaging videos.
The appeal of a family vlog is obvious. Parents are paid for the task of raising their children. Children receive free toys and days out in return for enjoying themselves on camera.
There's a food-based family vlog I find myself watching when the videos appear on my Facebook feed. The couple vlogged before having a child and, when the baby was born, they joined the family business. It's bizarre how invested you become in seeing the child grow and learn.
It's self-directed and controlled reality television with parents giving absolute permission to watch their child - and if the parents are ok with it, then shouldn't the viewer be?
But what does the child want? I feel increasingly uncomfortable watching the toddler, who now has standalone videos without their parents, who cannot consent meaningfully to taking part.
Reading the comments under the video is extremely discomfiting. It isn't the critical posts that make for the most dismaying reading, it's those that idolise this little baby and project all manner of motivations and thoughts on to her. It shows a complete lack of understanding of the child's autonomy.
How will this little person feel when they grow up and realise all their childhood milestones were made public so their parents can profit? Parents should be protectors, not employers, and children who are having a lark about on camera now may end up feeling exploited once they reach an age where they can understand what happened to them.
Plenty will have slick video editing skills and a healthy bank balance. Others will feel conflicted - like Mr Eldon - at best, or grubbily manipulated at worst.
His lawsuit might be thrown out or it may be successful but the scorn with which it has been met shows a worrying lack of understanding of children's autonomy and how natural it is for young people to have mixed emotions towards a complex situation.
When the Nevermind photograph was taken, no one could have predicted that self-filmed living room life would be the way to fame and fortune but the future of family vlogging three decades hence is easier to see: a legion of grown babies with vengeance on their minds and lawyers by their side.
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26 August, 2021 - 05:02pm
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HIS name might not be familiar, but his photo certainly is.
Spencer Elden was the baby who featured on the cover of US rockers Nirvana’s 1991 album Nevermind.
But the American model is now 30, and suing the band for alleged child sexual exploitation. He says his parents never signed a consent form for use of the nude photo and that it constitutes child porn.
But what has happened to others whose pictures have become part of music history? Here, we take a look.
The two men passing each other in the street on the album cover were supposed to be Noel and Liam Gallagher.
But when the party-loving rockers didn’t make the 5am shoot after a night on the tiles, photographer Brian Cannon and BBC London DJ Sean Rowley – also part of the previous night’s drinking crew – took their places on Berwick Street in London’s Soho.
Brian said: “If I’m not mistaken I’m pretty sure we stayed up straight through the night.”
Model Lucy Joplin was 23 when she was hired by the Welsh rockers to kiss a stranger on a football pitch under West London’s Westway road.
In 2007, she said of her vacant stare on the album cover: “I gave them something money couldn’t buy.
Me and my boyfriend had been up all night on absinthe and opium, and that faraway look in my eyes couldn’t have been achieved any other way.”
She was paid £75 cash, and said: “I blew it all on underwear.”
Artist Alberto Vargas painted this woman for the US rockers’ album. His paintings of pin-ups were in Esquire and Playboy magazines from the 1940s to 1960s.
The Peruvian was 83 and retired when approached by the band’s drummer David Robinson.
The model was Candy Moore, then 32, who in the Sixties played the screen daughter of US sitcom The Lucy Show’s creator and star Lucille Ball. Candy, now 73, briefly dated Robinson.
The mum-of-one is divorced and, until 2019, taught English in LA.
The model for the Irish rockers’ debut album, Peter Rowen, was the younger brother of Derek Rowen, aka Guggi, a Dublin artist pal of U2 through his band Virgin Prunes.
Peter first appeared on artwork for the band’s debut EP, Three, in 1979. He was then asked to illustrate Boy, and was reportedly paid in Mars bars.
In 1983, he appeared on U2’s third album, War – and recalled that he didn’t like the soup that was served at the shoot.
Peter went on to become a photographer and shot U2’s 360 tour in 2009.
Vegan frontman Morrissey wanted to draw a parallel between meat-eating and war, so picked an image of a US soldier from the Vietnam War for this album.
He also changed the slogan on his helmet from “Make war, not love” to “Meat is murder.”
US marine Michael Wynn, from Ohio, was 20 when photographer-director Emile de Antonio took this shot in 1967 for war documentary In The Year Of The Pig.
Michael later went to university then worked as a fireman. He moved to Australia in 1982.
Siblings Stefan and Samantha Gates scrambled on Northern Ireland’s Giant’s Causeway for this album. Samantha said of the nudity: “Nothing was thought of it.”
She later appeared in films then moved to South Africa with her husband and child.
Stefan went to Oxford University and became a food and science writer and TV host, who has appeared on This Morning.
But he says of the album art: “It has become a photo I have no control over. I feel like I have been stolen.”
The shot was by US photographer Tee Corinne. Suede frontman Brett Anderson said: “I chose it because of the ambiguity, but mostly the beauty.”
He wanted to use a full-length version of the image, which shows two naked women, one in a wheelchair, but Tee said no to protect their identity.
Tee died of liver cancer in 2006, age 62.
The Red Cross demanded its logo be cut from this saucy album cover shot of US adult actress Janine Lindemulder, then aged 30.
The mum-of-two is a three-time divorcee.
Her second husband, from 2002 to 2004, was motorbike entrepreneur and reality TV star Jesse James, later wed to Miss Congeniality star Sandra Bullock from 2005 to 2010.
Janine was jailed for six months in 2008 over tax issues. She was also married to an ex-convict from 2009 to 2010.
Retired fisherman John Button’s weathered face, captured in black and white, made an arresting image for this singles compilation.
John, who lived in the East Sussex seaside town of Rye, reportedly said he would buy a record player to listen to the band’s songs, just “out of curiosity”.
He seemed unaware of The Cure’s chart success – they had already released six studio albums – and told their biographer: “If I can help these youngsters break through, why not?”
26 August, 2021 - 05:02pm
Times change. Time changes us. The baby, now 30-year-old artist Spencer Elden, may sincerely feel that his life has been wrecked by a fame he didn’t ask for, and never directly profited from. His father, on a lark, took $200 for his baby son to be photographed by his friend Kirk Weddle from below in a pool. Infants can’t sign consent forms, and the new lawsuit argues that Elden’s legal guardians never signed a release, either. Cobain and his band Nirvana became famous, and Nevermind sold more than 30 million copies.
Elden joins a long line of child stars, among them Christopher Robin Milne, the model for Christopher Robin in Winnie the Pooh (written by his father, A.A. Milne), whose identities have been overshadowed by young fictional characters their parents invented—or allowed others to invent. Like Elden, who re-created the Nirvana album cover (clothed) a few times over the years, Christopher Robin Milne sometimes seemed to bask in the glow of fame. Later, again like Elden, he tired of being perpetually known for his childhood self, no matter how beguiling.
Elden has said he might have one of the most famous penises in the music industry. But if you are ranking the most famous baby penises of all time, the winner would be Jesus Christ. Stroll through any museum that displays art from the Italian Renaissance, and you will see one divine baby penis after another. And—by our modern standards—who seems to be ruthlessly exploiting him, but the Madonna? Christ’s own mother blatantly displays his genitalia for all the world to ogle. But that’s not what those penises meant, argued art historian Leo Steinberg in 1996. With painstaking care and excruciatingly erudite repetition, Steinberg proved that all those naked babies made a theological point, once upon a time. The youth and nakedness of Christ showed observers, back in the Renaissance, that God didn’t just save us. He willingly became the most vulnerable, helpless human being possible. And so, when he would suffer for our sins, he would really suffer.
It just doesn’t look that way to us now. Nothing much about the past looks to us now the way it was intended. I can’t tell you with certainty what Kurt Cobain was thinking in 1991. But as a scholar who has studied images of childhood, and a mother who had her own children only a few years after Nevermind came out (and who remains a fan of the album), I can tell you the album cover resonates very differently today than it did back then.
Nevermind, when it was new, looked like the perfect image of idealism in jeopardy. In 1991, idealism still seemed like maybe—just maybe—it could be saved. The dollar bill on the hook rippled, right up close to us, pulled on a line held by an invisible force outside the image. The baby’s arms stretched from one side of the image to the other—yes, like a crucifixion—swimming so close to that dollar bill, because he takes up so much picture surface, and yet far away, because underwater everything looks far away. We were thinking: Baby, don’t do it—don’t sell your soul. We felt we were that exposed baby, always in peril, always swimming after some temptation that would get us nowhere in the end.
The genius of the image was in its core concept and in its formal execution, not in the documentary fact of a penis photographed. If Cobain had had a less clever idea, if Weddle had chosen a different angle or light, if Geffen Records art designer Robert Fisher had composed the cover differently, the cover wouldn’t have become a cultural icon—then. The image succeeded despite the penis. As Michael Azerrad writes in his book about Nirvana, some at Geffen feared chain stores would object to the inclusion of the baby’s genitalia, and Cobain proposed putting a sticker over it, with the copy: “If you’re offended by this, you must be a closet pedophile.” But as the record rolled out, successfully, very few objected, and the sticker proved unnecessary.
Now, the cover of Nevermind looks genuinely different, and it’s not just Elden’s mind that has changed on the topic. We see the impact of childhood experiences differently than we did. To treasure our children, we want to keep them safe, and covered. We do therapy; we acknowledge trauma. We know sexual abuse of children really happens, and the pain of it can damage a whole life. We know the human brain is plastic, so that the stories we tell ourselves shape our identities.
And social media has given us a greater sense of visual sophistication. We think about images’ effects on people more often. Above all, we know how badly people can be hurt by pictures gone viral. We see how media manipulation can affect real people in real time. School bullying now includes online posting of pictures that betray secrets, or embarrass their subjects. Instagramming and YouTubing parents expose their children in ways that regularly walk the line between creativity and exploitation—and get called out for it. TikTok depends on a very young audience transforming itself within a minute through makeup, costume, song, and dance. Because we believe those transformations are self-creations, they have only made us more wary of images which seem to impose any sort of sexuality on a baby, child, or teenager.
Today, too, we care at least as much about content as about form, as much about the backstory as the creative outcome. Our tolerance for the personal vagaries of artists has dwindled. Michael Jackson’s behavior around children tarnished his magnificent musical legacy; Woody Allen’s has done the same for his films. So what, this line of thought goes, if Cobain’s concept or Robert Fisher’s design were genius? A baby was still exploited. Some people got money from the cover; others didn’t.
I don’t doubt that the Nevermind album cover, which has been a background image in our visual culture since 1991, has had an impact on Spencer Elden’s life. Today’s values dictate all of our perceptions. The Kurt Cobain of the present moment, whoever they are, would not even have the same kind of idea again. (That said, in this case, Kurt Cobain’s genius has been proved through the ultimate irony. Thirty years later, the baby is swimming for money: Elden is asking for $150,000 at least from each of 15 named defendants.)
We desperately want to alter the past according to what we sincerely believe right now. I am among those who believe we have a more just vision of society today than we had in 1991. But that doesn’t make me think we can retroactively redo the past. Elden’s feelings about his infant fame in 2021 can’t change what Kurt Cobain meant back in 1991. Let’s change the future instead.
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26 August, 2021 - 10:01am
A case filed Tuesday alleges that the grunge rock band engaged in commerial child pornography when it used a photo of a naked baby on the cover of its iconic album “Nevermind” in 1991. The group went on to sell some 30 million copies of the record, meaning that a large percentage of the population could be at risk for possessing an image of child sex abuse by owning the album, if the suit succeeds.
Fortunately for Nirvana fans, it likely will not.
Nirvana most likely wouldn’t be liable for the picture on their cover, but readers googling this photo to see it for themselves do so at their own peril.
When Spencer Elden was four months old, he was dunked in a swimming pool as part of a photo shoot for the album. The cover ended up featuring him and his clearly visible penis underwater as he appeared to chase a dollar bill dangling at the end of a fishing line. Elden, now 30, claims this means Nirvana knowingly produced, possessed and advertised commercial child pornography with his image, and they knowingly received value in exchange for doing so. The plaintiff is seeking monetary damages authorized by the federal criminal law prohibiting, and defining, child pornography.
But child pornography doesn’t describe just any picture with naked minors. It means any visual depiction of “sexually explicit conduct,” where the production involves the use of a minor engaging in such conduct. And that conduct is defined as involving sex acts or simulation, as well as “lascivious exhibition” of the genitals.
Courts recognize that the term “lascivious exhibition” is difficult to define. It requires an image-by-image assessment using a test developed by a California federal court in 1986, which considers several factors, most of which appear to weigh against a finding of child pornography on the album cover.
First is the question of whether “the focal point of the visual depiction” is on the child's genitalia. While it certainly is visible on the album cover, there are also a lot of other things on the cover, as described in the complaint: a hook, a dollar bill, the face of the swimming baby. Even the underwater setting could be described as a focal point.
The next factor also weighs against the plaintiff: whether the “setting of the visual depiction is sexually suggestive.” In other words, whether it’s a place or pose generally associated with sexual activity. The location — a swimming pool — is not traditionally associated with sex, the way a bordello or even a bedroom might be.
Elden alleges he was depicted swimming after a dollar bill, which suggests baby prostitution. But if the photo itself isn’t sexually suggestive, it can’t suggest that the consequence of getting the dollar bill is in exchange for sex.
Courts also consider whether the subject is in an unnatural pose or inappropriate attire for the age of the child. If a baby immersed in a pool is an “unnatural” pose, what about a baby in a bathtub? If so, that would not bode well for all the parents who snap a pic of their baby during bath time.
The fourth factor is whether the child is nude or clothed, and here there’s no question the baby on the album cover is nude. But does full nudity, in this context, make it any more sexually suggestive than if he were wearing clothing? Indeed, there’s an argument to be made that certain kinds of mature, sexualized clothing might be more sexually suggestive than full nudity.
The fifth factor might be the plaintiff’s strongest argument, but it’s still not a slam dunk. The plaintiff might argue that swimming in the nude after a dollar bill suggests a willingness to engage in sexual activity — namely, prostitution. Still, if an adult male was depicted nude and swimming after a dollar bill, would it categorically imply prostitution? Probably not, especially when the adult was not positioned in a sexually suggestive manner.
Finally, the court will consider “whether the visual depiction is intended or designed to elicit a sexual response in the viewer.”This can be the trickiest factor. It speaks of the intent behind the photo, but it’s really measured by the response of the viewer. Is it enough if any viewer has a sexual response? Or must it be a universal response? As if this weren’t complicated enough, the federal appeals court for California acknowledges that no one of these factors is conclusive.
Here’s an example of how hard it can be to define child pornography: In 2017, the Texas Supreme Court considered a digital photo of an existing photograph of a three-year-old girl wearing no underwear under her dress, sitting on a bench. That court concluded the photo depicted the “lewd exhibition” of a child’s genitals, for a conviction of possession of child pornography.
This is where it gets really complicated: The original photograph was considered a work of art, by a famous (and controversial) artist named Robert Mapplethorpe. The original photograph was in the collection of the Guggenheim Museum in New York City. So why was the original in the Guggenheim, and the defendant in criminal court?
The defendant had zoomed in on his photo of the photo, and cropped it to show a close-up of the girl’s genitals. Gross. According to the court, once he cropped the image, the girl’s genital area became the “focal point,” and was intended and designed by the defendant — not Mapplethorpe, apparently — to elicit a sexual response in the viewer (himself).
What this case suggests is that if someone pulled up the Nirvana album cover on their iPhone, zoomed in on the baby’s genitalia, and cropped it, that person could create and possess child pornography — even if the original photo is not child pornography. According to this court, there is potential child pornography within any lawful photo of a child playing in the bathtub. That means Nirvana most likely wouldn’t be liable for the picture on their cover, but readers googling this photo to see it for themselves do so at their own peril — especially if it’s cropped somewhere online.
Danny Cevallos is an MSNBC legal analyst who practices in the areas of personal injury, wrongful conviction and criminal defense in Pennsylvania, New York and the U.S. Virgin Islands at the law firms of Cevallos & Wong in Pennsylvania and Edelman & Edelman in New York, where he is of counsel.