Spencer Elden might be better known as “the Nevermind baby.” As a 4-month old, Elden appeared on the front of the album that catapulted grunge band Nirvana to super stardom. Elden, now 30, is suing a more than a dozen defendants in a suit that claims that his participation on the now-iconic album cover constitutes child pornography and he did not consent to the use of his image. The suit is asking for $150,000 from each defendant, a sum totaling roughly $2.1 million.
“Nevermind”: legal entanglements and Nirvana
In the court of public opinion, and at least one show on CNN, the timing and language of the lawsuit is questionable. According to artistiklicense.org, the terms for the use of an image need to be set as soon as the agreement to use said image is made. In order for a model or an image-maker to profit from the album’s success, that agreement would have had to have been in place already. According to Ultimate Classic Rock and elsewhere, Elden’s parents were paid $200 for the use of Elden’s image.
More disturbing than the money aspect of this is the claim (according to the court documents) that Nirvana LLC exists to spread child pornography. The language and the timing are disturbing. In a sense, the claim seems to imply that the band’s success was a result of the cover photo. The reality is that the image was one part of the album, and its relevance is ultimately usurped by the content of “Nevermind,” which does not feature any work by Elden.
Further, as more details of the case unfold, it is unclear what the purpose of it is. At one point, the claim is about child pornography, on the other hand, it seems to be about not getting paid more after the album’s subsequent success. Would there be a suit if the album had not sold well? Would the picture still be considered child pornography by the now-adult subject if the album had not sold well? And, if Elden and his parents had been paid more at the time of the album’s release, would the claim exist?
Many official and unofficial sources have pointed out that Elden’s subsequent re-creation of the “Nevermind” cover image indicates that he is fine with its existence. Elden also has “Nevermind” tattooed on him.
If the child pornography angle is to be believed, then the best recourse is to simply change the cover image. And, once that claim is proven, then appropriate monetary damages should apply. But if Nirvana engaged in “child pornography trafficking,” to whom was the product trafficked? To millions of apathetic, sometimes disenfranchised tweens to young adults who finally heard the sound of the way they felt? That there was a naked baby on the front was worth a quick laugh, if that. Are all consumers of Nirvana’s “Nevermind” to be treated as those who harm children? Some of whom were children when the album was purchased? That type of reasoning seems a bridge too far.
“Nevermind” lawsuit: a bit of background
In interviews with popular news outlets, Elden has claimed that people recognize him from the cover image. It is difficult to imagine people looking at the cherubic baby and the adult man with scruffy beard and shoulder-length hair, and making the connection between the two, unless a person was closely linked to that person over a period of years.
Elden also claims that “when girls find out I’m not getting paid” for the use of his image, “they dump me.”
According to the New York Times, Elden, who is an artist, reached out to Nirvana to take part in one of his art shows. The article claims that he was referred to “managers and lawyers.” The article quoted Elden as saying, “Why am I still on their cover if I’m not that big of a deal?”
The easy answer is that album covers typically do not change based on how a band relates to the person that appeared in a cover image. The New York Times article further reports that Elden is suing for “lifelong loss of income” and “emotional distress.”
The 35-page suit has been filed, but it is not clear if it will be dismissed. The incident highlights the importance of clearly stating via contracts what roles people are playing in any professional arrangement. Otherwise, people whose images have been used in album cover art could demand to be paid as if they were another member of the band.
That this lawsuit almost coincides with the 30th anniversary of “Nevermind” is unfortunate. Real fans of Nirvana appreciate the music, not just the almost-edgy cover art.