History of Nirvana
In 1991 an alternative rock band named Nirvana, with their charismatic lead singer, Kurt Cobain, sprung to fame with the release of their second album “Nevermind”, featuring a naked baby swimming (with his penis exposed) toward a dollar bill on a fish hook on the album cover. An innocent throwing himself into a pool for a $1 bill, without knowing how to swim, was widely considered a rebuke of capitalism.
The album made a meteoric rise to No. 1 on the Billboard charts, and collectively remained there for more than six years. Cobain began to be called the voice of Generation X, and used his platform to decry sexism, racism, and homophobia, gathering fans along the way. The band’s lore grew when Cobain married Courtney Love of the grunge band, Hole, in 1992. Then when he killed himself in 1994, the iconic band gained cult status.
Spencer Elden is the poster child for frivolous lawsuits, not for Nirvana
Let’s fast forward to 2021 and the baby on the “Nevermind” album cover. Unless you have been living under a rock, you’ve probably heard that the baby, one Spencer Elden, a starving artist, is now 30 years old and has initiated a Federal lawsuit in California, claiming money damages.
Even though the photograph is nonsexual in nature, and thus not considered pornography under the law, his publicity-seeking lawyers allege that the inclusion of currency in the photo makes the baby appear “like a sex worker.” Right, and the final photos of the Titanic make it look like the passengers suddenly craved fresh air.
Elden’s lawyers named anyone they could think of when filing this lawsuit, including surviving band members Dave Grohl and Krist Novoselic; Courtney Love, the Executor of Cobain’s Estate; Guy Oseary and Heather Parry, managers of Cobain’s estate; photographer Kirk Weddle; art director Robert Fisher; and a number of existing or defunct record companies that released or distributed the album in the last three decades. They even named the band’s original drummer, Chad Channing, who had left the band a year before the photoshoot. They are seeking a minimum of $150,000 from each party.
The lawsuit laughingly argues (I’ll show you why soon enough) that Elden “has been and will continue to suffer personal injury and permanent harm, including extreme and permanent emotional distress with physical manifestations, interference with his normal development and educational progress, lifelong loss of income earning capacity, loss of past and future wages, past and future expenses for medical and psychological treatment, loss of enjoyment of life, and other losses”.
In an attempt to further demonstrate the seriousness of his claim, Elden’s attorney says that the photographer produced these sexually graphic images with the goal of enhancing the commercial success of the “Nevermind” album. . . um, yeah . . . because every other album cover ever printed was designed to lose money for the artist?!
The actual history of the album cover
This album cover ended up being created after Cobain watched a documentary on babies being born underwater and wanted the cover to be a birthing shot. He commissioned photographer Kirk Weddle to do the shoot, but the original idea was quickly nixed by the sponsors as way too graphic (see – the sponsors are not irresponsible) and they opted for a swimming baby.
Weddle reached out to Elden’s father, someone who had helped him in the past with sets, custom rigging, and props for photoshoots. Spencer was only a few months old at the time. Elden’s parents brought the baby to a swimming pool, did the shoot, were paid $200 for their time and consent (verbal, not written), and the rest is history.
How to defend a lawsuit of this nature and topics for cross-examination of Mr. Elden
First, let’s deal with the “Nevermind” cover itself. Yes, it is listed as one of the “Top 50 Best Covers in Music”. But that’s not why the album sold 30 million copies – it’s because the music was great – I love the Beatles, but I didn’t buy Abbey Road to have a picture of Ringo Starr’s bare feet.
Now let’s focus on the alleged damages. Spencer is claiming he suffered irreparable damage from this incident and has been emotionally scarred. History suggests otherwise. I think we can all agree that Spencer, only several months old at the time, would have no memory of the actual event. Instead, as he got older, family and friends told him about his role in Nirvana’s history.
And Spencer ran with the tale and exploited the hell out of it. He has proudly told anyone who was willing to listen that he is the baby on the cover. How else would they know? Do you often meet a 25-year-old and say “wow, you look like that baby on the Nirvana album?” Additionally, he has had the albums’ name, “Nevermind” tattooed on his chest. His haircut and facial hair are also designed to make him resemble Kurt Cobain, so much so that I might even cast him for the lead role if a movie about Nirvana ever gets made. Spencer has also boasted that he’s “gotten a lot of hot chicks, who think he’s rich, because of his ties to Nirvana” and he has stated that he “is invited to Nirvana events all the time”. In 2003, he told Rolling Stone Magazine that “every five years or so, somebody’s gonna call me up and ask me about Nevermind … and I’m probably gonna get some money from it.” In a 2015 documentary, Spencer said the “album cover had opened doors for him”. Did I mention that several locals interviewed by reporters for their articles said, “Spencer has drug problems.”? Sounds like Spence-baby is the one doing the exploiting of Nirvana, not the other way around.
Then there are Spencer’s recreations of the original photo at ages 10 and 17, presumably for a fee, where he again screamed to the world “look at me – I was the naked baby” to make sure they didn’t forget his name. He then posed a third time in 2016 to mark the album’s 25th anniversary. In all of these shoots he wore a bathing suit, but he told at least one photographer that the shot should be recreated with him naked. The photographer declined to go that route. Several years later he told the same thing to a NY Post reporter. So, showing your adult genitals is OK, but showing a baby’s is pornographic? Boy, this guy likes to stretch the truth.
By the way, why doesn’t he name his parents in the lawsuit? First of all, by submerging him in a pool, they could have drowned him. But with regards to Nirvana, they were Spencer’s legal guardians and his first line of defense, from these child predators. Yet, they approved this shoot for only $200. Why did they take so little? Probably because in 1991 nobody knew Nirvana would be a hit – their first album was a disaster. Also, parents are proud of their naked babies . . . just think of all of those embarrassing Thanksgivings, when your parents whipped out your childhood photo albums to show their friends a photo of you playing naked in the bathtub or those other occasions when your parents let you walk around the beach butt naked for hours. I’ve never been compensated – have you?
Finally, why didn’t his parents, if they felt their child had been exploited, sue Nirvana and crew at any time during the last 30 years. More relevant, why did Spencer wait 12 years to bring a lawsuit after becoming an adult. He may not even be allowed to bring this lawsuit now. The California Code of Civil Procedure states that people who were victims of a sex crime as a child have eight years after they become adults at age 18 to file a complaint. An exception to this rule is that if the alleged victim doesn’t realize they were harmed until after their maturity, then they have an additional three years from the date of recognition. Therefore, to get beyond the statute of limitations, he will now need to find a psychologist to issue a report saying he didn’t have a full grasp of the damage to his life until recently. I’m sure he will find a publicity-seeking therapist, the same way he found a publicity-seeking law firm, but that doesn’t give any more merit to the lawsuit.
But let me let you chew on a better reason Spencer waited. In a recent interview, Spencer said that he recently became annoyed, when he reached out to Nirvana members to contribute money or time to his upcoming art show, and instead of having his call personally returned (because he expects the band to pin their success on his existence), he was instead referred out to their lawyers by a manager. Ahhh, so this is about feeling jilted and sour grapes. Gotcha – now we have a motive!
By the way, isn’t Spencer an artist? Forgetting the law, wouldn’t he be at the front of the line to recognize that a naked baby is “art” not “pornography”?
Sadly, this case will settle, and these greedy slobs will make some money and gain more fame
This case appears frivolous. A Federal judge will, in my opinion, ultimately dismiss it. However, the reality is that most cases never see the inside of a courtroom. By naming a bunch of deep pockets (people associated with the band are quite rich), some defense lawyer will determine how much money it costs to defend this case and convince other parties that the smart thing to do is make a universal settlement. Perhaps the photographer or a band member will feel guilty that Spencer’s parents really were paid too little and give this kid some extra money to create some good karma. Also, this is not a case that music executives want to see in the daily press because, if for some reason he is successful, it would have huge implications for the music industry, as it relates to album covers, economic exploitation in general, and exploitation of children. So, they may push for settlement as well.
And, when that happens, Joe and Joanna Public will never find out what Spencer collects, and the case will disappear from the news overnight because to get the funds offered, Spencer will have to sign a confidentiality agreement that says he can never talk about this case again or he loses the money . . . which I don’t think Spencer can do, because he clearly loves the attention this album cover brought him, and he will offer to show his genitals again on the 50th Anniversary of “Nevermind”.
Regardless of a settlement offer down the road, my takeaway from this suit is that it has never been about the money. It’s about the free publicity benefiting the plaintiff and his lawyers. We are all talking about Spencer. Soon, the young, starving artist in this action will sell a lot more artwork. Likewise, the law firm, which specializes in sexual abuse cases, will move to the forefront of their industry (because all press is good press) and increase their caseload. It’s like Shark Tank – Barbara Corcoran and Mark Cuban may choose not to invest in your company, but the next morning when you awaken, a new 50-million-person audience is checking out your product.
Does Spencer’s lawyer even believe in this suit? I suggest they do not. It hasn’t gone unnoticed that the partner handling this case is not talking to the press but instead has a 2019 law school graduate (a newbie) at their firm doing interviews on CNN. Why? Because the partner probably was being cautious about the potential backlash of this lawsuit and wanted a scapegoat to throw at reporters, in the event this suit backfires and the press wanted to crucify Spencer.
Listen, I’m sure there are people out there that will completely disagree with me and take Spencer’s side. I get that. People are always entitled to their opinion and, if Spencer didn’t exploit his fame and brought this case the first chance he could, maybe I would be on their side. Unfortunately, my profession is always under a microscope for lawyers taking on frivolous cases. Lawsuits like this invite tort reform, which eventually interferes with true victims looking for justice. Just my opinion.