Lawyers say Spencer Elden, the naked baby on Nirvana‘s ‘Nevermind’ cover, is likely to have his lawsuit dismissed.
Elden, now 30, is suing the band’s surviving members and Kurt Cobain’s estate, among other individuals and entities. The lawsuit alleges that the use of Elden’s image on the album art, taken when he was a few months-old baby, amounted to “commercial child sexual exploitation”.
It goes on to allege that the band and other defendants “violated” federal child pornography statutes by using the image, and that Elden sustained “injuries” and “lifelong damages” as a result of the album cover and the record’s global success and fame.
“Neither Spencer nor his legal guardians ever signed a release authorising the use of any images of Spencer or of his likeness,” the filing claims, “and certainly not of commercial child pornography depicting him.”
Elden also wants the album art altered for any future re-releases, according to his lawyer Maggie Mabie.
But a number of legal experts have now told The Hollywood Reporter the case is likely to be dismissed.
Bryan Sullivan, an entertainment litigation partner at Early Sullivan, said the suit was “ridiculous,” and that even if there wasn’t a written agreement, Elden’s claims are weak.
“I think it is highly unlikely that a record company would use a photograph for an album cover without verifying the existence of a release signed by the parents,” he said. “But, if is there is no release, it does not mean he has a claim for child pornography. As to the right of privacy, you can waive it by your actions or by his parents’ actions in allowing him to be photographed.”
Entertainment lawyer Andrew Brettler agreed that publicity will be a key issue: “What I think really damns their case is the fact that this kid sat for all these interviews and re-created the album art.”
But Elden’s lawyer, Mabbie told CNN the cover is an “overly sexualised” image and said that it was “child exploitation in the way that they created it and the way they distribute the image today.”
She also said that Elden is expecting another invasion of his privacy as the album approaches its 30th anniversary, which takes place next month.
None of the defendants named in the filing has publicly responded to the lawsuit at the time of writing. NME has reached out to photographer Kirk Weddle and co-manager of Cobain’s estate Guy Oseary, both of whom were named in the filing, for comment.
Elden has been profiled by several publications since the release of ‘Nevermind’, often for stories celebrating the album’s anniversary at various points over the years. Elden has even recreated the album cover, though clothed, in photoshoots – first in 2008, and then in 2016 for the album’s 25th anniversary.
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