糖心Vlog

Nirvana鈥檚 album Nevermind has reached its 30th anniversary and is under more scrutiny than ever as a result of a  recently filed by the former cover-star.

Spencer Elden, the underwater baby tempted by a dollar bill on a fishhook, is suing the band and Kurt Cobain鈥檚 estate for having 鈥渒nowingly produced, possessed, and advertised commercial child pornography鈥�. The claim states that the band benefited financially from their participation in his 鈥渟exual exploitation鈥�. Elden now seeks a civil remedy of US$150,000 per defendant for the 鈥渓ifelong damages鈥� he claims to have suffered.

Originally inspired by , it has been said the cover as a comment on the values society imparts to the youth. The same picture is, however, interpreted differently in the lawsuit which attempts to weave in the idea that the image was designed to elicit a sexual response from viewers.

It goes so far as to suggest that Cobain 鈥渃hose鈥� the image depicting Elden 鈥� 鈥� grabbing for a dollar bill that is positioned dangling from a fishhook in front of his nude body鈥�.

The legal argument

Under , a key factor in distinguishing between the artistic cover and illegal explicit content is whether the depiction of the minor constitutes a of their intimate parts 鈥� in other words, a depiction designed to excite sexual stimulation in the viewer. Also, any must be based on the depiction taken as a whole, with its overall content and context in mind.

Elden is likely to face an uphill struggle in persuading a court that the cover is deliberately focused on the baby鈥檚 genitals and that the creators intended to elicit a sexual response 鈥� as the first thing most people probably notice is the underwater background.

But, even if he was successful on the child pornography ground, the difficult question would arise of whether fans who own or have downloaded the album with its cover art have copies of a child sex image and so have committed a crime.                            

The lawsuit also suggests that Elden has suffered a 鈥渓oss of enjoyment of life鈥� and had his privacy violated. But it could be pointed out that Elden has previously acted in ways that continue to cement his connection with the band. He has the cover to honour the album鈥檚 past anniversaries and to sign album covers.

Although it鈥檚 not unusual for people to reconsider the impact of their experiences from early life, the fact that Elden leaned into the public sphere and seemingly relished his involvement with the album may dilute the strength of his claims.

Couldn鈥檛 consent

Elden鈥檚 parents were paid US$250 for the photo shoot. Presumably, this was a standard rate for an unknown model rather than taking into account what the image would be used for.

It is uncertain whether this money was passed down to Elden. He has his bitterness about having never directly profited from his involvement in the Nevermind project. As his parents鈥� deal cannot now be renegotiated, some might dismiss his current lawsuit as an attempt to get compensation for the commercialisation of his image.

At the core of Elden鈥檚 lawsuit is the fact that the band鈥檚 team got his before photographing him. Though of course being a baby, Elden did not have any choice. And from this perspective, Elden鈥檚 case is a useful reminder for parents to think about the types of images they online.

A warning to 鈥榮harents鈥�

A lot has changed since the release of Nevermind in September 1991. With the rise of social media sites and photo-sharing networks, the average parent today is to share over 1,000 images of their child online before their fifth birthday. Compared to the Nirvana baby album cover, images shared online nowadays are even harder to control.

Indeed, a recent found that 42% of teenagers in 25 countries are troubled by what their parents post about them on social media.

Although some steps have been taken to protect children鈥檚 privacy online 鈥� such as the introduction of the which applies to digital services that target minors 鈥� the law is as to whether a child鈥檚 right to privacy is essentially lost when parents share their images online.

The legal avenues currently available protection against parental either, meaning that so-called may have to live with the longevity of their digital footprint 鈥� often attached to them without their consent.

Elden has previously addressed the popularity of the iconic cover and he appears about it. His ambivalence about the image may be valid. The public鈥檚 perception of the album and the visceral feelings attached to its success should not discourage a dispassionate and neutral legal assessment of whether the photograph is unlawful.

But the Nirvana baby lawsuit also serves as a timely reminder to parents to think carefully of the digital shadows they may create for their children. Indeed, parents cannot simply have a 鈥渘evermind鈥� attitude to what they share online.

This article is republished from under a Creative Commons license.