Spencer Elden was four months outdated when he was photographed by a household pal in 1991 drifting bare in a pool.
The image, taken at the Rose Bowl Aquatics Center in Pasadena, Calif., can be used that 12 months for the cowl of “Nevermind,” Nirvana’s seminal second album that helped outline Generation X and rocketed the Seattle band to worldwide fame.
In the a long time that adopted, Mr. Elden appeared to have a good time his half in the traditional cowl, recreating the second for the album’s 10th, 17th, 20th and 25th anniversaries, although not bare.
“It’s cool but weird to be part of something so important that I don’t even remember,” he mentioned in 2016 in an interview with The New York Post, during which he posed holding the album cowl at 25.
Now, nonetheless, Mr. Elden, 30, has filed a federal lawsuit in opposition to the property of Kurt Cobain, the musician’s former bandmates, David Grohl and Krist Novoselic, and Mr. Cobain’s widow, Courtney Love, amongst different events. He claimed that they, together with Geffen Records, which launched “Nevermind,” profited from his bare picture. It is one in every of the best-selling data of all time, with not less than 30 million copies bought worldwide.
“Defendants knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so,” in keeping with the lawsuit, which was filed on Tuesday in federal court docket in California.
Mr. Elden suffered “permanent harm” due to his affiliation with the album, together with emotional misery and a “lifelong loss of income-earning capacity.” The lawsuit didn’t present particulars about the losses and mentioned they might be disclosed at trial.
Mr. Elden, an artist dwelling in Los Angeles County, has gone to remedy for years to work via how the album cowl affected him, mentioned Maggie Mabie, one in every of his legal professionals.
“He hasn’t met anyone who hasn’t seen his genitalia,” she mentioned. “It’s a constant reminder that he has no privacy. His privacy is worthless to the world.”
The lawsuit mentioned that Mr. Elden is searching for $150,000 from every of the 15 folks and corporations named in the criticism, together with Kirk Weddle, the photographer who took the image. Mr. Weddle didn’t reply to messages requesting remark.
Mr. Weddle paid Mr. Elden’s parents $200 for the picture, which was later altered to show the baby chasing a dollar, dangling from a fishhook.
“They were trying to create controversy because controversy sells,” Ms. Mabie said. “The point was not just to create a menacing image but to cross the line and they did so in a way that exposed Spencer so that they could profit off of it.”
She said her client sometimes agreed when the band, media outlets and fans asked him to recreate the photo as an adult, but he eventually realized that this only resulted in the “image of him as a baby being further exploited.”
The representatives for Mr. Cobain’s estate did not immediately respond to a message seeking comment. Representatives for Mr. Grohl, Ms. Love, and Geffen Records, which is now part of Universal Music Group, did not respond to messages.
Mr. Elden, who declined to comment on his suit, said in a short documentary in 2015 that the album cover had “opened doors” for him. For example, he worked with Shepard Fairey, the artist who was sued by The Associated Press for using an image of Barack Obama for his piece “Hope.”
Over the years, he has expressed ambivalence about the cover.
“It’d be nice to have a quarter for every person that has seen my baby penis,” he said in a New York Post interview in 2016.
In a different interview that year, he said he was angry that people still talked about it.
“Recently I’ve been thinking, ‘What if I wasn’t OK with my freaking penis being shown to everybody?’ I didn’t really have a choice,” Mr. Elden said to GQ Australia.
He said that his feelings about the cover began to change “just a few months ago, when I was reaching out to Nirvana to see if they wanted to be part of my art show.”
Mr. Elden said he was referred to managers and lawyers.
“Why am I still on their cover if I’m not that big of a deal?” he said.
Ms. Mabie said that Mr. Elden has long felt discomfort over the images and had expressed it in even earlier interviews when he was teenager.
“Mr. Elden never consented to the use of this image or the display of these images,” she said. “Even though he recreated the images later on in life, he was clothed and he was an adult and these were very different circumstances.”
Ms. Mabie said his parents never authorized consent for how the images would be used.
She noted that Mr. Cobain once suggested putting a sticker over the baby’s genitals after there was pushback to the idea for the cover.
Mr. Elden is “asking for Nirvana to do what Nirvana should have done 30 years ago and redact the images of his genitalia from the album cover,” Ms. Mabie said.
This lawsuit is not a typical child pornography case, said Mary Graw Leary, a professor at the Columbus School of Law at the Catholic University of America.
“Nudity of a child alone is not the definition of pornography,” she said. “The typical child pornography that is being seen in law enforcement and pursued in the courts can be violent. The children are young and it is very graphic.”
But there are factors under federal law that allow a judge or a jury to determine whether a photo of a minor “constitutes a lascivious exhibition of the genitals,” including if they were the focal point of a photo, Professor Graw Leary said.
That part of the law “gives a bit more discretion to the court,” she said. “It’s not a case with easy answers.”
Mr. Elden’s past comments about the cover should not undermine his current claim that he was a victim of child pornography, she added. The law does not pick between children who immediately denounce their abusers and children who initially were dismissive about what happened to them, she said.
“We don’t want to be in a position where we’re only going to consider one case criminal because in the other, the child didn’t think it was a big deal at the time,” Professor Graw Leary said. “We don’t only protect certain kids.”