The Rest Of The Story: “The Baby On The Album Cover: Dumb Lawsuit, Valid Ethics Point”

Last August, I wrote about Spencer Eldon’s “Hail Mary” lawsuit against the surviving members of the band Nirvana over their use of his baby photo (which his parents received compensation for) in an iconic album cover above for “Nevermind.” The verdict here was that the lawsuit was doomed, he was greedy, and the law supported the band. However, I also wrote,

...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 TV series “Call the Midwife,” and every episode requires one or more infants who are forced, without their consent, to endure the stressful 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.

Lawsuits, however, are decided on what’s legal. Judge Fernando M. Olguin, who was presiding over the case at the U.S. District Court in Central California, dismissed it after Elden missed his deadline to file an opposition to the defendants’ motion to dismiss. However, Judge Olguin’s dismissal was made “with leave to amend,” so Elden has a chance to refile a new complaint addressing the “defects” alleged in the defendants’ motion to dismiss. The new deadline is January 13. If he misses the new deadline, that’s the ball game.

The dismissal is not on the merits, and it does seem like the judge is bending over backwards to give Elden a chance to prove his case. I suspect, however, that the ex-baby may be throwing in the towel by forfeiting on a procedural flaw and saving face rather than losing the suit outright, which has always been the likely result.

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