He was 4 months old when he was photographed by a family friend in 1991 drifting naked in a pool at the Rose Bowl Aquatics Center in Pasadena, California. The same photo was used that year for the cover of “Nevermind,” Nirvana’s seminal second album, which essentially defined Generation X and gave unprecedented fame to the Seattle band. In 2021, Spencer Elden, now 30 years old, has sued the band, and the record labels behind "Nevermind", alleging that the photo is child pornography they have profited at "his expense".
Nirvana and the record labels "intentionally commercially marketed Spencer's child pornography and leveraged the shocking nature of his image to promote themselves and their music at his expense," said the lawsuit, filed by Elden in federal court on Tuesday in California.
What does the lawsuit say?
According to the lawsuit, Spencer Elden has suffered "lifelong damages" from the image of him naked underwater appearing to swim after a dollar bill on a fish hook. The 30-year-old artist living in Los Angeles County has sought at least $150,000 from each of more than a dozen defendants, including the Kurt Cobain estate, surviving Nirvana members Krist Novoselic and Dave Grohl and Geffen Records. Nirvana, which was till then a little-known grunge band, shot up to fame after this generation-defining album, their first major label release, whose songs included "Smells Like Teen Spirit," "Come as You Are" and "Lithium." It is one of the best-selling records of all time, with at least 30 million copies sold worldwide.
Elden's lawsuit against the band said, "Defendants knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so."
Elden, according to the lawsuit, suffered “permanent harm” because of his association with the album, including emotional distress and a “lifelong loss of income-earning capacity.” Details about the loses, however, were not disclosed and the same would be provided at trial.
"Cobain chose the image depicting Spencer — like a sex worker — grabbing for a dollar bill that is positioned dangling from a fishhook in front of his nude body with his penis explicitly displayed," the lawsuit said. None of the defendants have so far responded to the lawsuit.
Why is Elden suing the band after 30 years?
Spencer Elden "finally has the courage to hold these actors accountable," one of his attorneys, Maggie Mabie, told The Associated Press on Wednesday. The lawsuit, Mabie said, is within the statute of limitations of federal child pornography law for several reasons, including the fact that the image is still being used to earn profit.
Spencer Elden has also demanded in his lawsuit that any new versions of the album be altered. "If there is a 30th anniversary re-release, he wants the entire world not to see his genitals," Mabie told the AP.
The backstory of the photo-in-question
Spencer Elden's father was a friend of the photographer, Kurt Weddle (one of the defenders), who took pictures of several swimming babies at the Rose Bowl Aquatic Center. The baby Elden's photo, according to the NYT report, was picked from among dozens of baby pictures for the album cover. Weddle reportedly paid Elden’s parents $200 for the picture. The photo was later altered to show the baby chasing a dollar, dangling from a fishhook.
Why did Spencer Elden appear on the album's anniversary cover
Spencer Elden, who has now sought compensation for "permanent harm" the album has caused to him, apparently celebrated his part in the classic cover, recreating the moment for the album’s 10th, 17th, 20th and 25th anniversaries, though he did it with clothes on.
Elden told the New York Post in 2015 that it was "cool but weird to be part of something so important that I don't even remember."
Elden, who did not comment on the lawsuit, said in a short documentary in 2015 that the album cover had “opened doors” for him.
Change in stand over the years
Elden, on several occasions had expressed his disappointment over the issue. “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,” Elden said to GQ Australia.
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,” his lawyer Mabie said.