Spencer Elden, the man photographed as a baby in a swimming pool on the cover of the Nirvana album Nevermind, is suing the band alleging that it was sexual exploitation.
The case argues that Nirvana violated federal child pornography laws and that he has suffered lifelong damages as a result. Spencer Elden, now 30, claimed that he could not consent to the photo’s use in 1991 since he was just a 4-month-old baby.
The lawsuit, obtained by Pitchfork, details that Elden said the band portrayed him as a sex worker by having him reach for a dollar, and that after some pushback, Kurt Cobain had momentarily agreed to put a sticker over his genitals, which was never used. The record went on to sell over 30 million copies and is generally regarded as one of the greatest records of the ’90s, defining the sound of grunge rock.
“Spencer’s true identity and legal name are forever tied to the commercial sexual exploitation he experienced as a minor,” the lawsuit argues, “which has been distributed and sold worldwide from the time he was a baby to present day.”
According to U.S. law, non-sexualized photos of infants do not have a history of being classified as child pornography, but Spencer argues that there has been precedent in California state law that once included an “exhibition of the partially clad genitals” as child pornography.
The case describes exactly how Spencer Elden has suffered emotionally as a result of the photo’s use, and that he never received any residuals as compensation for the record’s international success. Even more shocking is that his legal guardians at the time did not sign a contract or release for the photos of any kind, creating a sort of legal gray area financially over the rights to use those photos.
In an interview with NPR in 2008, his father Rick, who was a friend of the photographer, said that the shoot lasted only 15 seconds and that they were given $200 for the photos. When the album went platinum five months later, Geffen Records reportedly sent the parents a platinum record and a teddy bear.
“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,” the lawsuit reads.
One could imagine that a better way to make sure that your name and likeness at age 30 is no longer connected to a photo of you as a baby would be to not sue the famous band publicly, but Spencer Elden is seeking that each of the 15 parties listed as defendants pay at least $150,000 in damages (which would total to around $2.25 million).
As NBC News pointed out, former-drummer Chad Channing is confusingly listed as a defendant alongside Kurt Cobain, Dave Grohl, Courtney Love, Krist Novoselic, photographer Kirk Weddle, and others, despite the fact that Chad Channing had been replaced by Dave Grohl as the drummer for Nirvana an entire year before Nevermind‘s release.
Over the years, Spencer Elden had previously taken a more playful approach to his legacy as the baby on the cover of Nirvana’s Nevermind, recreating the photo multiple times to celebrate the record’s 10th, 20th, and 25th anniversaries. He even had the word “Nevermind” tattooed on his chest.
In a 2015 interview with The Guardian, Elden described how he had benefitted from the photo, saying that, “this story gave me an opportunity to work with Shepard Fairey for five years, which was an awesome experience. He is a huge music connoisseur. When he heard I was the Nirvana baby, he thought that was really cool.”
Spencer’s position soured just one year later, however, when he said that he had actually become pissed off about it. He told Time magazine in 2016 that, “It’s hard not to get upset when you hear how much money was involved.”
“Everybody… has probably seen my little baby penis,” Spencer said. “I feel like I got part of my human rights revoked.”
Representatives for Nirvana have yet to respond to the lawsuit’s claims.