Boris Ignachkov Spencer Elden (aka the Nirvana baby) recently announced he will be pursuing legal actions against the band for using a naked photo of him as a baby.
In the case of Spencer Elden v. Nirvana L.L.C. et al, the plaintiff claims that the photo amounts to child pornography and that neither himself nor his parents gave their consent for the photo to be used as an album cover. However, the parents were paid $200 for the photo, which in itself implies consent. The defendants include the band members (including those who joined the band in the later years), Kurt Cobain’s estate, the photographer, and multiple record labels. The claim is asking for at least $150,000 from each defendant plus the cost of action. A steep price from the original amount parents received for the photo.
Spencer reveals he has spent years in therapy due to the emotional distressed it has caused him. In an interview about the lawsuit, his lawyer, Maggie Mabie, states that “[Mr. Elden] has not met anyone who hasn’t seen his genitalia”, leaving him feeling as if he has no privacy.
What is interesting is that no one would have know who the baby on the cover is, meaning Spencer could have remained anonymous, but he chose to be associated with it in his adult years. He has recreated the original cover four times, the last one being 2016 for the 25th anniversary of the album.
During that time, Mr. Elden, in an interview for the New York Post, said that “It’s cool but weird to be part of something so important…” and that during the shoot “[Spencer] said to the photographer, ‘Let’s do it naked.’ But he thought that would be weird, so [he] wore [his] swim shorts”. Today, Spencer states he has realised the recreations mean the original baby photo is being “further exploited”, as according to his lawyer. His commemoration of the cover could potentially prevent Spencer from proving that he was as abused as alleged in the lawsuit.
‘Nevermind’ has been named as one of the best-selling albums of all time, with over 30 million copies being sold worldwide. This, of course also means over 30 million people owning a photo of Mr. Elden naked as a child. A quick online search will also reveal unofficial merch and posters of naked Spencer, making it difficult to estimate how many people possess the photo, with Nirvana acting as a catalyst for the out-of-control spread.
The lawsuit refers to the success of the album and attributes this to the sexually suggestive nature of the cover. Attributing the band’s success solely to the photograph seems to be a stretch. It is also questionable whether the claim that the photo is sexually suggestive will hold in court, as nudity of a child alone does not constitute child pornography. The lawsuit goes as far as to claim that Elden is depicted as a sex worker. As it is not uncommon for parents to photograph their babies naked, this claim might not be accepted by the jury. Often the album cover is rather seen as a statement on capitalism and not as child pornography.
A redaction of Elden’s private parts is not explicitly stated in the lawsuit. Instead, the lawsuit seeks money and the destruction of any future copies. The outcome is uncertain as Elden has requested a trial by jury which could end up depending on the emotional aspects of the case.
So, is Spencer really seeking justice, or is the Nirvana baby once again chasing dollar bills at 30?
