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Cover model: Spencer Elden 2016 with the album "Nevermind"
Photo: ugpix
On September 24th of this year the album "Nevermind" by the rock group Nirvana will be 30 years old.
In an interview with the English magazine »Uncut« in June, bassist Krist Novoselic announced a possible re-release of the album for the anniversary, and because (according to estimates) around 30 million copies of »Nevermind« have already been sold, the new version will contain rare material be heard: “What's on it?
You will see, I don't want to spoil the surprise, «said Novoselic.
It would be quite a surprise if the famous cover of the baby who seems to be swimming after a dollar bill were changed for the occasion. But that is exactly the wish of Spencer Elden, the now 30-year-old man who can be seen on the album cover as a four-month-old baby. At least that's how he is quoted in a press release from the law firm he hires: "I just want the band to do what they should have done 30 years ago: Out of respect for my privacy, they should retouch my genitals in the picture."
Elden accuses the band, its members, the photographer, the cover designer and the record company with the commercial distribution of child pornography. His attorney Robert Y. Lewis has therefore filed a lawsuit in the District Court in central California. And unlike his client, he was available to answer questions about the lawsuit, which attracted a great deal of attention worldwide.
Lewis argues that, according to case law, there is no need to see sexual activity in order to view an image as child pornography. Even a "lascivious representation of the child's genitals" could be sufficient for this. And that is the case with the album cover: the nudity is undeniable. The genital area is the focus of the picture. The child is depicted in an unnatural pose, it looks like it is reaching for a dollar bill: "That's the kind of movement a sex worker would do in a strip club," said attorney Lewis.
In addition, the band was well aware of the possible sexual connotations of the cover image at the time.
A Nirvana biography states that employees from the record company's sales department expressed concerns that the prominently visible penis could scare off conservative stores.
The art director offered a retouch.
Nirvana singer Kurt Cobain was also prepared for an outcry and had prepared a sticker with the words "If you're offended by this, you must be a closet pedophile" .
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Singer Cobain: Suggested provocative sticker
Photo: Frank Micelotta Archive / Getty Images
The matter is also tricky because Spencer has repeatedly commented on the cover in interviews in recent years - and even re-enacted the motif several times and jumped into the pool. There was a tattoo of "Nevermind" on his chest. In 2016, he is said to have even proposed to be photographed naked underwater, which the »New York Post« said the commissioned photographer had refused.
In the interviews, Elden sometimes stated that he found the world-famous baby photo of himself very cool and that it opened doors for him, he said in 2015 when he tried to gain a foothold in the world of art.
On several occasions, however, he also spoke of frustrations.
He told Time magazine: "You pick up a hot girl, and when she realizes that you didn't make any money, she drops you again." The article from 2016 says he already had then legal action against the record company Geffen Records considered.
Why is unknown.
His current lawyer Lewis has a simple explanation for the contradicting behavior: "On the one hand he was proud to be associated with the album, but on the other hand traumatized." He never liked the sexualized character of the portrayal.
In an interview with the Australian »GQ« in 2016, Elden said that over time it had become clear to him: »What if it's not okay with me that my darned penis is shown to the whole world. After all, I didn't have a choice. ”This question is at the center of the ongoing proceedings. Lawyer Lewis emphasizes that neither Spencer Elden nor his parents have ever given consent to use it as a record cover that has been distributed millions of times, but only received $ 200 for participation in the photo shoot. In the trial, Elden is now demanding $ 150,000 in damages per defendant - a set amount for this type of offense, according to attorney Lewis.
How the court judges the facts is completely open. Because not everyone assesses the legal situation like Elden's lawyer. CNN legal expert Chris Cuomo accused the law firm of playing down "real" child pornography cases with this lawsuit. The Hollywood Reporter questioned various industry lawyers about the prospects for success of the lawsuit. Their verdict is somewhat devastating: it is "ridiculous," it is said, the court will dismiss it - and could possibly even bring proceedings against the law firm. Lawyer Lewis is naturally more optimistic. A law professor had already emailed him and asked to present his case to her students.
Should due process result, the jury could rule on the case in 2023.
That would be too late for the 30th anniversary album edition.
But out-of-court settlements are always possible, says Lewis.
(And our style department has already made a suggestion for the design: That's the point!)