Legal Experts React To The Child Porn Lawsuit Filed By Nirvana’s “Nevermind” Baby
The cover of the 1991 Nirvana album, Nevermind, features a naked baby reaching for a dollar in a pool. Art imitates life, which imitates art, because that baby, now a 30-year-old man named Spencer Elden, is also reaching for a dollar. 150,000 of them, to be exact. He’s recently sued for $150,000 in damages alleging that he was “sexually exploited” and that the cover was child pornography and a “sex-trafficking venture.” Most of us saw the news of this lawsuit and thought “Um, the fuck?” but legal experts have now weighed in and it seems they too are thinking “Um, the fuck?” and the consensus between legal experts and regular people is the same: This is very weird.
Spencer was only a baby when his parents were paid to let him be photographed for the cover, and he’s recreated the picture several times in the past. But now he’s pissed and has sued 15 defendants including Nirvana’s Dave Grohl and Krist Novoselic, Kurt Cobain‘s estate, and Courtney Love. One of Spencer’s lawyers, Robert Y. Lewis, specializes in child pornography, crime victims’ rights, criminal restitution, and copyright cases, and has an 85% win record on cases going to verdict, according to his profile on his law firm’s site. Well, this case may fall in that other 15% because other legal experts are sort of confused.
Yahoo! Entertainment spoke to lawyer, Bryan Cunningham, who called the case an “uphill battle” and gave several reasons why, explaining that federal child pornography laws are not intended to address this type of thing. Since the album cover is generally understood to be an artistic commentary on capitalism, it would be hard to call it porn. He also called out the “human trafficking” claim calling it a “massive overreach.” Since the album has been released, Spencer has recreated it four times and even got a Nirvana-related tattoo, which would make it hard for him to argue he suffered from the original picture. Entertainment lawyer, Michael Ackerman, co-signed the confusion, saying:
“Furthermore, by having participated in recreations of the cover photo, it’s hard to argue that he suffered permanent emotional distress. Victims of abuse don’t publicly reenact their abuse for publicity.”
Michael continued to slap down the idea that Spencer could say he suffered from this cover since no one would be able to identify the baby in the photo without the person coming forward as Spencer has multiple times.
As for why Spencer and his lawyers named everyone under the sun in the lawsuit (including original drummer Chad Channing who was replaced by Dave Grohl in 1990 and is barely featured on Nevermind), Bryan suggested they tried to “include as many defendants as possible to maximize the potential payout and media impact of the case.”
The only claim that seems to have any potential legal merit is the negligence claim, which Michael explained could be a successful argument if, in fact, no one checked for a signed release. But Michael said that Spencer still may not be able to collect any money since again, the baby would be unidentifiable as an adult.
Bryan and Michael seem to agree that this lawsuit will be settled because there’s the threat of a jury siding with Spencer since he didn’t make much for the photo and Nirvana got rich.
My guess is that this case will settle, in part because of the uncertainty of going to a jury trial in a case like this. A jury following proper instructions might well find for the defendants here, including because some of Mr. Elden’s past statements could make him seem mostly in it for the money. On the other hand, a jury hearing how much money the defendants have made in part because of the image and how little he or his parents were paid might disregard jury instructions and award him a significant sum of money out of a sense of basic fairness, even if they are not persuaded that the defendants actually violated the child pornography statutes.
So Spencer will most likely get a payout to go away. But at what cost!? We all know that Courtney Love does not like to be messed with and if she has to give Spencer even one cent, he’ll never hear the end of it. In the far future when he’s on his deathbed, Courtney Love, who will live forever, will appear and say, “So do you have the money you swindled from me or what? I haven’t forgotten!”
Pic: Universal Music Group/DGC Records