The Baby On The Album Cover: Dumb Lawsuit, Valid Ethics Point

Naked baby cover

Thirty years ago, Spencer Elden, age four months, was photographed by a family friend naked and floating in a pool at the Rose Bowl Aquatics Center in Pasadena, California. The striking and cute photo was then sold by his parents to be the cover of “Nevermind,” the rock band Nirvana’s second album that shot the Seattle band to international fame. (Never could stand Nirvana myself.)

Through the years Elden pretty much exhausted the opportunities to exploit his accidental celebrity, recreating the wet, wild and adorable moment for the album’s 10th, 17th, 20th and 25th anniversaries (but not with his naughty bits exposed, of course) “It’s cool but weird to be part of something so important that I don’t even remember,” he said in an interview with The New York Post in 2016, in which he posed holding the album cover at 25. Eldon even reportedly has “Nevermind” tattooed on his chest.But this year he needs money, or has a change of heart, or met up with an unethical lawyer, or something. Now Elden is suing Nirvana for damages, claiming his parents never signed a release authorizing the use of his image on the album, and more provocatively, that his nude infant image constitutes child pornography.

“The images exposed Spencer’s intimate body part and lasciviously displayed Spencer’s genitals from the time he was an infant to the present day,” legal papers filed in California claim. Lasciviously? The album cover indeed showed Elden as a baby with his genitalia exposed. Maybe it also made tiny Spencer seem greedy, since the graphic artist added a digitally added dollar bill on a fishing line, leaving the impression that the tot was trying to grab the dollar.

Of course, he IS greedy now.

The case is brought under statutes like 18 U.S.C. 2255, “Civil Remedy for Personal Injuries,” which provides that any person who is a victim of a violation of child pornography may recover the actual damages or liquidated damages in the amount of $150,000 per victim, and reasonable attorney’s fees. The lawsuit doesn’t breach Rule 3.1 of the various state legal ethics rules for being ‘frivolous”; as I’ve stated here before, it may be a stupid lawsuit, but it is trying to get a new standard established. OK, it may be ethical, but Constitutional Law expert Jonathan Turley, without any opposition that I can find on the web among legal authorities, thinks the case is a loser. He writes that finding liability in a case like this “would sharply abridge free speech in the use of nudity for artistic and expressive purposes….”

“In 2002, the U.S. Supreme Court ruled against a provision of federal law that banned computer simulations and virtual pornography under the first amendment. In Ashcroft v. The Free Speech Coalition, Justice Kennedy in a 6-3 decision found that the Child Pornography Prevention Act of 1996 was “overbroad” and swept within its prohibitions many valuable and artistic works. [Kennedy wrote:] “Pictures of what appear to be a 17-year-old engaging in sexually explicit activity do not in every case contravene community standards . . . The (Act) also prohibits speech having serious redeeming value, proscribing the visual depiction of an idea — that of teenagers engaging in sexual activity — that is a fact of modern society and has been a theme in art and literature for centuries.”

Predicting a swift dismissal, the professor adds, “Images of naked bodies have been featured in art since the earliest artistic periods from images of the baby Jesus to cherubs to realistic imagery. These are not depictions for prurient appeal. The notion that this is meant to make the baby look like a sex worker is ridiculous, but even if it were true, it might not overcome a claim of artistic value.”

He’s right; it’s a silly lawsuit. Nonetheless, parents who use their children for public display are engaging in unethical conduct. Yes, they have the legal right to do it, and no, there is virtually no chance that any law will be passed banning what I consider to be child exploitation and low-level, but still unethical, child abuse. My wife and I have been watching the long-running British YV series “Call the Midwife,” and every episode requires one or more infants who are forced, without their consent, to endure the stressfull experiences of playing newborns or sick baby’s under lights, in the arms of strangers, often covered with fake blood.

Elden might be insincere and the lawsuit is probably hopeless, but he’s not wrong in one respect. “[When] I go to a baseball game and think about it: ‘Man, everybody at this baseball game has probably seen my little baby penis,’” he said in one interview. “I feel like I got part of my human rights revoked.” Not rights, never rights: parents will always have the right to inflict indignities, publicity and stress on their minor offspring for fame and fortune. From the Coppertone girl to Linda Blair to “Mikey” and the kid in “The Shining,” they have all been unethically exploited by their parents, just like Spenser Eldon, without informed consent.

It’s legal, but it isn’t ethical.


Sources: BBC, NYT, Res Ipsa Loquitur

Pointer: ARGHH! A loyal and helpful reader, but I kind find which one!

8 thoughts on “The Baby On The Album Cover: Dumb Lawsuit, Valid Ethics Point

  1. For what it’s worth, I agree with your assessment.

    Had Mr. Elden raised these issues when he first had the opportunity to do so, he might have had some standing. But it’s just a little too convenient to reap the benefits of his accidental notoriety, then sue when the stock of Nirvana fans interested in paying for autographs and such had begun to run dry.

    The other album cover kerfuffle that comes to mind was a couple of years ago when Facebook banned photos of Led Zeppelin’s “Houses of the Holy” album cover, which showed several naked children, although not their naughty bits, then reversed course after a couple of days after considerable public uproar.

    As is the case with things web-related, it came around again on FB last week… before news broke about Elden’s suit.

    La la how the life goes on.

  2. I have a couple of thoughts regarding this episode. First is that I think it is a stretch to consider this to be an example of exploitation by the parents. Unless the parents continuously threw the baby into the pool for the expressed purpose of getting the perfect picture, I think this is just an example of parents enjoying the moment and a friend taking a great picture. The fact that someone saw this picture and thought it qualified as art is pure luck. Now, if the parents had been pushing his likeness of talent agencies, dragging him to talent contests and pageants, then yes, I would agree. Without that it just qualifies as proud parents with a great picture. Also at that time there were many studies showing benefits to introducing babies to water, so even having the baby in deep water itself wasn’t exploitative or cruel.
    The second point is the statement that “all of these people” had seen his penis. The only reason he could feel this way is because he had repeatedly told those people the penis was his. If he had moved on and never mentioned it, I doubt that there are 10 people in the world who would associate his name with the baby on the cover.

    • A third point just came to mind. Did the photographer friend give the photo to the parents? Regardless of whose image the photo is, the rights to it belong to the photographer. There was an incident recently where a celebrity (I think it was Arianna Grande) posted a paparazzo pic of herself on her own social media and was ordered to remove it because the pic did not belong to her, even though it was her image. If the photographer owned the photo, that is the only person he can sue.

    • Re your first point. I agree, up to a point. The photo was taken specifically for the purpose of (possibly) using it as the album cover. The photographer was a friend of the boy’s father, and offered him $200 for what might be called a modeling session. So it may not be exploitation by the parents, but neither is it just some really cool photo the band came upon by chance.

      Re your second point: Absolutely.

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