Spencer Elden, the man who was photographed as a baby swimming on the cover of Nirvana’s 1991 debut album, Nevermind, filed a lawsuit in a California district court on Aug. 23 against the surviving band members, Courtney Love and other members of Kurt Cobain’s estate, various record labels, and the production crew involved in the original shoot 30 years ago, alleging that the image is child pornography.
Photographed when he was four months old, the album cover featuring Elden swimming naked in a pool with his genitalia visible was shot as a statement on capitalism, using a digitally imposed image of a dollar bill on a fishhook in front of Elden.
Now 30 years old, Elden is asking a minimum of $150,000 from each defendant listed in the lawsuit, including surviving Nirvana band members Dave Grohl and Krist Novoselic, along with Love, Cobain’s widow and executor of his estate, and Guy Oseary and Heather Parry, managers of Cobain’s estate. Original Nirvana drummer Chad Channing is also listed in the lawsuit, even though he was replaced by Grohl in 1990 before Nevermind was recorded and the photograph was taken. Warner and MCA Music and the Universal Music Group, which currently houses Nirvana’s catalog are also included in the suit.
Photographer Kirk Weddle and art director Robert Fisher of the Nevermind photo shot and a number of existing or defunct record companies that released and distributed the album are also being sued.
In the lawsuit, Elden alleges that he “has suffered and will continue to suffer lifelong damages” as a result of the album cover, including “extreme and permanent emotional distress… interference with his normal development and educational progress” and “medical and psychological treatment.”
Throughout the years, Elden has recreated the same pose in the pool, albeit mostly clothed, as a teen and adult for a number of anniversaries surrounding the album but always had mixed feelings about the shoot and states in the lawsuit that he was never compensated for the image, aside from the $200 given to his parents on the day of the shoot, and has tried to reach out to Grohl and Novoselic in the past to no reply.
Though Elden’s father Rick was friends with the Nevermind photographer Weddle, who initially told them about the shoot, the parents allegedly never signed paperwork officially allowing the use of the image, which was shot at the Rose Bowl Aquatic Center in Pasadena, California.
“Neither Spencer nor his legal guardians ever signed a release authorizing the use of any images of Spencer or of his likeness,” reads the suit, “and certainly not of commercial child pornography depicting him.”
Elden’s family started having mixed feelings about the image months later when the album was released, and there were nine-foot posters on Sunset Blvd.
Under law, non-sexualized photos of nude infants are generally not considered child pornography, but Elden’s lawyer Robert Y. Lewis insists that the inclusion of money in the photograph insinuates that the baby was a “sex worker.”
“Defendants intentionally commercially marketed Spencer’s child pornography and leveraged the shocking nature of his image to promote themselves and their music at his expense,” read the lawsuit. “Defendants used child pornography depicting Spencer as an essential element of a record promotion scheme commonly utilized in the music industry to get attention, wherein album covers posed children in a sexually provocative manner to gain notoriety, drive sales, and garner media attention, and critical reviews.”
Elden, who also has the Nevermind logo tattooed on his chest, said in a Time interview around the 25th anniversary of the album that it’s always felt strange being part of something so big that he doesn’t remember.
“I got a little upset for a bit,” he said. “I was trying to reach out to these people. I never met anybody. I didn’t get a call or email. I just woke up already being a part of this huge project. It’s pretty difficult—you feel like you’re famous for nothing, but you didn’t really do anything but their album.”