Nirvana sued by the man who appeared on Nevermind’s album cover as a baby

https://www.bbc.com/news/entertainment-arts-58327844

by sohkamyung • 5 years ago

173 333 5 years ago

Non-sexualised photos of infants are generally not considered child pornography under US law. However, Elden's lawyer, Robert Y. Lewis, argues that the inclusion of the dollar bill (which was superimposed after the photograph was taken) makes the minor seem "like a sex worker".

This (the dollar as a sex worker) seems to a difficult position to hold. We’ll see what will happen in court.

Edit: I’ve always thought the dollar was here to say “everyone want to be rich, also newborns”, or something similar, never thought the newborn as a sex worker.

estomagordo• 5 years ago

never thought the newborn as a sex worker.

probably because that's a completely ridiculous connection that nobody makes

briane80• 5 years ago

Telling on themselves

cblconfederate3• 5 years ago

LOL! I wonder if, having a dirty mind like that to make that association, should auto-add you to some child predator list. None of this is sane, but in this crazy witch hunt, the witch--hunters themselves are not excluded.

bitwize• 5 years ago

I thought the implication was quite clear: a (somewhat jejune) critique of consumerist society by implying we're made to chase the "almighty dollar" from a very young age.

technothrasher2• 5 years ago

I took it slightly more subtly as society using consumerism, which we are inherently attracted to, as bait to hook us into things which are not in our best interest.

NoSorryCannot• 5 years ago

Even if it _did_ suggest that, the conclusion that that would make it pornographic is very silly.

Such a thing would still most probably be intended as a critical observation about the sorts of people that innocent babies become, rather than a literal depiction of a baby prostitute.

It's wow ridiculous.

WesolyKubeczek2• 5 years ago

The lawyer, this Robert Y. Lewis, seems to be a real sick person. I'm not keeping my kids in his vicinity. What if something makes him think they are underage sex workers and approach them with a dollar to buy the services from them?

thanatos519• 5 years ago

I wonder if the baby on the right is still into peeing on himself or would like to sue Logitech now.

https://www.adforum.com/creative-work/ad/player/23267/baby/l...

Loeffelmaenn• 5 years ago

What the hell is the ad even supposed to mean

bodge5000• 5 years ago

a little from column A, a little from column B

h2odragon• 5 years ago

If you're embarrassed by a baby picture like that, just don't admit its you. Its not like people recognized this kid, right?

"I've been harmed by having completely irrelevant and optional fame available to claim at my discretion" doesn't sound like a strong claim worth lots of money.

fxtentacle• 5 years ago

Yeah, I thought the same. He's probably only being recognized because he himself re-staged the album cover for Nirvana's 10th, 20th, and 25th anniversary.

Broken_Hippo• 5 years ago

I don't think the lawsuit will go anywhere, but I'm also not sure how much choice he would have had for the 10th anniversary cover. He would have still been young - what, 12 or 13 at the oldest? - and could have easily been forced into it by his parents.

But I am pretty sure that - as long as he wasn't fairly poor (which warps perception) - he could have told them no on the 20th and 25th.

iamben• 5 years ago

Especially after saying: "It's always been a positive thing and opened doors for me." He even has a Nevermind tattoo on his chest (at least in the picture in the article, I appreciate it could have been added for one of the number of shoots that recreate the cover).

torben-friis• 5 years ago

Given that he has the name of the album tattooed on his chest, and he agreed to remake the picture as an adult 6 years ago (even offering to be naked, which the photographer rejected) I'm gonna say this is just an attempt to cash in.

the_only_law2• 5 years ago

A pretty pathetic attempt at that. If you’re gonna pull this sort of stunt for the cash, at least try for a more impressive number.

lugged• 5 years ago

Probably but it sounds like he was roped into it as a young teenager to do the reshoots and I'm guessing if you're struggling it'd be hard to turn down secondary opportunities to make some money.

I don't think you can use that to discount his real complaint, he got his baby photos used on a record and got almost nothing for it.

ekianjo2• 5 years ago

I'm gonna say this is just an attempt to cash in.

A man's gotta have a little money to build his own swimming pool

amelius• 5 years ago

Well, in his defense: they taught him to chase money as a baby.

luckyandroid• 5 years ago

Could have sworn I'd seen interviews/articles before about how this person doesn't care and uses it to brag to his friends.

smhenderson2• 5 years ago

That's certainly possible - the article quotes him from a few years ago talking about how it's been a positive experience that opened doors for him.

kennywinker3• 5 years ago

We all process things differently, but making a joke of something that hurts is a VERY common way of dealing.

Idk if his claims of trauma are real or not, but I'll tell you what - that image was worth more than the ~$200 his parents got for it and on those grounds alone I'd award him a few hundred thousand.

technothrasher2• 5 years ago

You'd wish the courts to bail out anybody that ever made a deal that turned out not so great?

amanaplanacanal2• 5 years ago

Why do you think it would be worth more than $200? People bought the album for the music, not the cover. And even if the art might be worth more, wouldn’t it be the photographer who made the image that deserved it? Any other baby could substitute, and it would be essentially the same image. What unique quality did this particular baby contribute?

maverwa3• 5 years ago

This, to me, looks like a case where both parties are "wrong". I think its wrong to put photos of people who cannot (or have not) agreed in the public, especially photos of children, even more so when its not just some publication, but your damn Album cover. Also looking at you, scorpions. But I also think the "the dollar makes it look like a sex worker" spin is ridicoulus. Sounds to me like a claim that just exists to spin up the media and make sure the original claim ("you did not have the right wo put that image on that cover without covering") gets through.

So yeah, I guess that guy should get some of the Nirvana money. But cut the sex worker crap.

fastball5• 5 years ago

So literally there should never be anyone under 18 featured in any sort of media?

cheschire• 5 years ago

At first I thought you were being ridiculously extreme in your interpretation, but now I realize you were referring to the legal age of consent, as the parent was.

It’s a good point, and I think the age of consent is varied by state and country for just this reason.

maverwa3• 5 years ago

Luckily, I am no law maker but a random guy with opinions on the internet. But no, I would not say that we should ban every depiction of non-adults from all media. That would be way to broad. And I am not saying the "what" and "how" is something I can answer nor did I think about it in detail. I think the rule "should" be something between what we have now and what what you suggested (and what my original post might suggest). Where exactly, I cannot answer. But thanks for pointing out that my original formulation was lacking.

Kye2• 5 years ago

I haven't heard many positive stories from former child actors who talk about their experiences. The stories usually involve parents abusing their authority over the kid to make them chase fame for the parent's benefit. There should at least be more protections to ensure kids used in media aren't left with nothing other than jokes about that thing they did as a kid from strangers.

drewzero12• 5 years ago

Well, not naked at least.

rualca• 5 years ago

I think its wrong to put photos of people who cannot (or have not) agreed in the public, especially photos of children (...)

The article mentions that the plaintiff's parents were paid $200 by a photographer who was a friend of the family to have a photoshoot,and go as far as claiming that they were unaware of the whole pro photoshoot they held at the pool and were paid $200 to join was a photoshoot.

They also state that the record company even gave the plaintiff's family a commemorative record and a teddy bear a couple of months after the album release.

From this newspiece alone, and ignoring the fact that the plaintiff is known for having been milking his role in Nirvana's album cover since ever, it's hard to believe that a) the plaintiff and his whole family were not fully aware they willingly participated in a commercial photoshoot for which they were paid for, b) the plaintiff had an epiphany and change of heart regarding the event and suddenly felt he was a victim.

sandworm1017• 5 years ago

Tell that to Mila Kunis (Baywatch at age 11) the Olsen twins (Full House as literal babies) Kaley Cuoco (first film appearance at 11yo) and thousands of other sucessful people who got thier big breaks as children. Children are part of the entertainment industry and always have been. An industry without them would look very strange.

Harry Potter, but Harry is 18yo on his first day at Hogwarts. Every family sitcom disappears. And what about work entirely created by kids? I guess highschool drama clubs are out too. This gets very strange very quickly.

dylan6042• 5 years ago

were any of the people you mentioned or other child actors forced to perform in the nude?

hinkley2• 5 years ago

To be fair, The Magicians is magic college instead of magic grade school, but it's more common in literary magic systems for the child to discover magic after puberty, in which case magic high school might make more sense.

And are you really going to claim that the Olsens are normal?

When did Mickey Rooney start talking about how kids are treated in Hollywood? I'm surprised that at this point we have the ASPCA but no equivalent organization chaperoning kids on movie sets. Not only should this exist, but I think it should have an oversight board of former child actors. Foster, Barrymore and Feldman for instance would have a lot of hard questions to ask.

moistoreos• 5 years ago

These are allegations. The judge will decide what grounds these allegations have appropriately. It's not likely the sex worker has any grounds and will be tossed out. I presume it's just to beef up the lawsuit.

"Throw everything at the wall and see what sticks", if you will.

qwerty456127• 5 years ago

He also alleges the nude image constitutes child pornography.

I hope he wins and creates a precedent so the degree of absurd in this field gets serious and the shit hits the fan. This would be so fun.

PS: I don't advocate actual child porn but I do advocate nudity.

maverwa3• 5 years ago

Uh, thats an interesting idea. Now I hope he wins, too!

tromp• 5 years ago

It took him 30 years to become what's depicted on the cover, an attempted cash grab.

boopboopbadoop• 5 years ago

Quite ironic. He claims to be an artist, maybe this is a performance piece?

hamburglar• 5 years ago

I hope so. I have always interpreted the album cover to be a statement that greed is innate to us, to the point that you could go fishing for babies using dollar bills as bait. It’s conceivable that he’s just underscoring that point now. I kinda doubt he’d do so at the expense of his own reputation, but it’s a nice thought.

cblconfederate3• 5 years ago

So ironic to think that this baby would be chasing the money. Makes the artwork more important

This is clearly bad thinking. He should re-take the same picture today , it would sell for much more. Hell, he could take one every year

Edit: Whoa! Look at the guy holding child pornography in his own hands! https://www.telegraph.co.uk/content/dam/world-news/2021/08/2...

JohnJamesRambo• 5 years ago

Now that would be an NFT worth buying.

ekianjo2• 5 years ago

Edit: Whoa! Look at the guy holding child pornography

I hope he does not use an iPhone

smhenderson2• 5 years ago

He has retaken the picture several times, on anniversaries of the album's release. He seemed to think it was cool and opened doors for him five years ago but I guess he's changed his mind since then.

cblconfederate3• 5 years ago

not naked tho

smitty1e• 5 years ago

To paraphrase Clausewitz, "Lawfare is the continuation of advertising by other means."

Torwald• 5 years ago

Witz means wit or joke. Klausel is the technical term in law for clause. Sounds like a good fit for your comment.

Invictus0• 5 years ago

If he were smart he could have justed minted an NFT of the cover and sold it to whatever morons are still buying those.

fastball5• 5 years ago

An amazing case of the Streisand Effect.

Elden alleges his "true identity and legal name are forever tied to the commercial sexual exploitation he experienced as a minor which has been distributed and sold worldwide from the time he was a baby to the present day".

Absolutely had no idea what the legal name of the naked baby on the cover of Nevermind was. But now I do!

badwolf• 5 years ago

I knew his name a few years ago when he "recreated" the pic for an anniversary. And promptly forgot his name until today.

This just seems like a cash grab (by him, or more likely some lawyer, idk.)

azinman22• 5 years ago

If it really was so traumatic he wouldn’t be recreating the cover.

croes• 5 years ago

Let's ask the model for the album cover of Killer Virgin from The Scorpions.

Must be an american thing, nudity =sex

hulitu• 5 years ago

It's becomming also an european thing. Stupidity is contagious. I wonder how people will react to frescos of naked children depicted on european buildings.

BitwiseFool5• 5 years ago

There is a difference between a fresco and a photograph.

commandlinefan• 5 years ago

Actually, they (The Scorpions) got a LOT of flak over that album cover and issued a groveling apology over it years later. It's not used as the album art for that album any more either.

kzrdude• 5 years ago

It's hard to adjudicate if that image should be part of Wikipedia, but I would probably not include it (I would delete it from the articles), since it is on the border line.

rory• 5 years ago

It's a cash grab thing. No one involved earnestly interprets the cover as sexual.

drcode• 5 years ago

The Scorpions are a German rock band- look it up.

Bellamy• 5 years ago

I hope they guy gets nothing and has to pay everyone's court costs.

I have never seen such a clear cash in attempt. I hope the judge laugh's this guy out of the court room if it goes that far.

frankbreetz• 5 years ago

Claiming everything is child pornography is damaging to stopping actual child pornography. It may not be as widespread, but this is just as just as damaging as QAnon's "Save the Children" "movement"[0].

If he got paid 200$ back in the day, and thinks he deserves more money, that is fairly simple case to make and most people would agree.

He is not helping his case by shouting wolf. How would you feel about this article if you or one of your children were an actual sexual assault victim?

[0] https://www.deseret.com/indepth/2020/10/17/21452574/qanon-q-...

traveler012• 5 years ago

That's the same as a designer charging 200 bucks for a logo and then when the company becomes a multi national comes back asking for more. You agreed (in his case, his parents agreed) with the said price. Also naked baby and consider it's child pornography it's quite a big stretch. People are so sick.

xur17• 5 years ago

That's the same as a designer charging 200 bucks for a logo and then when the company becomes a multi national comes back asking for more. You agreed (in his case, his parents agreed) with the said price.

I'll agree it's similar, but the fact that his parents made the decision for him does make it different.

anthk• 5 years ago

It that's child pornography wait until you discover the zillions of pictures painted in Europe since the Middle Ages depicting nude people from a full range of ages just... standing naked with no sexual content.

You know, the eye of the beholder...

daneel_w• 5 years ago

How opportunistic. But I suppose one has got to "make a living" somehow...

asdff2• 5 years ago

Honestly, whether you make it or not in this world is sheer dumb luck for the most part. More power to the people in the neck brace suing the city for a million dollars for the 1 inch pot hole that kicked them off their bike. I'd be right there too if I saw I was potentially leaving money on the table even if the premise was a reach. It's a dog eat dog world out there and you gotta look out for your own.

JohnWhigham• 5 years ago

Lawyers exploiting perverted and archaic puritanical values many Americans still hold in order to squeeze out a quick buck. Truly and uniquely American.

BitwiseFool5• 5 years ago

How many other people are still questioning how the album cover was ever approved and distributed at all? Yes, I know the article explains it was not illegal to do so, but still.

Edit: Touched a nerve, apparently.

AdmiralAsshat• 5 years ago

Geffen were concerned that the infant's penis, visible in the photo, would cause offense, and prepared an alternate cover without it; they relented when Cobain said the only compromise he would accept would be a sticker covering the penis reading: "If you're offended by this, you must be a closet pedophile.

https://en.wikipedia.org/wiki/Nevermind#Artwork

BitwiseFool5• 5 years ago

"If you're offended by this, you must be a closet pedophile."

Clearly. Because apparently you can't think "Wow, how did this get approved? It seems like such a violation of societal norms. I wonder how they managed to do it."

mturmon• 5 years ago

As long as the thread is talking about money grabs, the cover chosen is the original one.

nemo44x• 5 years ago

The one Cobain really wanted was a picture a birth which was deemed too graphic. Also consider this album wasn’t expected to be anywhere close to the success it was in terms of sales. They ran out of copies for a little bit soon after it was released.

Geffen was hoping it could sell maybe 200,000 copies globally to a mainly underground/indie audience and it wouldn’t get picked up by the mainstream. For the follow up album the band agreed to change a song name and modify album art so Wal-Mart would carry it.

bastardoperator• 5 years ago

Someone is hard up for cash, not sure if it's the attorney or the plaintiff.

S_A_P2• 5 years ago

Sometimes people land on hard times so they make ill advised decisions. Lets be honest here, nobody is going to look at the adult and say hey I remember you- you're the naked baby on the nirvana album. He is the one who did that, by recreating the photo multiple times and doing interviews.

If we want to talk about gross album covers, I seem to remember a Scorpions album from the 70s that I don't ever care to see again or even look up...

Zelphyr3• 5 years ago

There's a version of the Martin Denny Romantica album cover where he's snuggling a woman with her bare breast exposed. Not gross but, very odd. The 60's were a strange time, man.

EMM_386• 5 years ago

This seems to be a cash grab.

Note this same guy re-created the album cover only 5 years ago. He didn't seem to have much of a problem at that time.

https://www.bbc.com/news/newsbeat-37478523

hereforphone• 5 years ago

Did he not have the balls(!) to do it naked as in the original?

detaro• 5 years ago

that's addressed in the article.

IgorPartola3• 5 years ago

Sorry not sorry, that’s a really dumb question to ask.

spoonjim5• 5 years ago

The motivations don’t matter. It was wrong for Nirvana to do and a big award will make others less likely to do this in the future.

rockbruno2• 5 years ago

You can't say the motivation doesn't matter when the person is clearly ill-intended. He claims he "has suffered and will continue to suffer lifelong damages". Nobody knew who this person was before he started complaining about it, how could he "suffer damage" from it? There's no case here and any defense lawyer would have a field day with this.

dbingham7• 5 years ago

If you follow the link through to the New York Post interview that BBC article is based on, and then watch the actual interview, you can see he's pretty fucking conflicted about it even then. The recreations could easily be him trying to take ownership of something he feels conflicted about as a way of exerting control over something he had no ability to consent to.

Quotes from that interview:

Q: "What's it like knowing all these people have seen you naked?"

A: "What's it like knowing all these people have seen my baby penis? When I was a baby? Well, I'm not really a baby anymore, so I have to think it's not me or something. But it's a trip that a lot of people have seen my baby penis, as a baby. I went to a baseball game at the Dodgers, and I had a moment where I was looking out and thinking 'All these people have seen my baby penis, when I was a baby'. It's pretty... pretty crazy. It'd be nice to have a quarter for all the people who have seen my baby penis. But, you know, there's all kinds of puns you could throw on that. But... you know... maybe it doesn't matter though, it's cool to be a part of that recipe for success. Makes you think you could do it again. That might not happy, but it's a pretty big thing, to be a part of, low key, but it definitely trips you out. But then I try not to think about it, because it's not that big of a deal, there's a lot of things going on that are more important."

I mean, it goes on, but to me that reads as someone struggling to come to terms with something that happened to them when they couldn't consent. Most people would not be okay with having their naked image broadcast to the world before they could consent. And then add in the idea that others made a ton of money off content that used their naked image, and they saw almost none of that... it's understandable.

namdnay2• 5 years ago

So I kind of agree, except:

1) nobody would ever have known it was him if he hadn't been trying to milk it for celebrity

2) He's aiming at the record label because they've got the big bucks, but it's his parents who sold him out when they accepted 200$ for a photoshoot

dougmwne• 5 years ago

Yeah, just imagine. You are born into this mysterious existence full of beauty, suffering, sadness and joy. You live on a mote in an infinite universe, sharing it with billions upon billions of self aware entities just like yourself, and ever since the very first moment you had awareness, each and every one of them had seen your little tiny baby penis.

Poor bastard.

ravenstine5• 5 years ago

I mean, it goes on, but to me that reads as someone struggling to come to terms with something that happened to them when they couldn't consent. Most people would not be okay with having their naked image broadcast to the world before they could consent. And then add in the idea that others made a ton of money off content that used their naked image, and they saw almost none of that... it's understandable.

As soon as the child pornography argument falls flat on its face (assuming the prosecution is actually that boneheaded), the defense may argue that the magnitude of possible harm is very different considering how the body, mind, and memory of an infant hardly recognizable to their adult counterpart and that there is no sort of humiliating aspect to the album art that would cause the public to view the adult Elden in any negative way.

It's not as if Elden doesn't have some point to make. It's bad that he hasn't been compensated for being pictures on one of the most iconic albums ever made. But unless there's something revealed in trial that I don't know, it doesn't appear that the record company or the band did anything wrong. It all hinges on whether there was sexual child exploitation, and although some people on HN seem to believe that the image of the naked body of an infant is inherently sexual in nature (which is creepy to me, but what do I know), I highly doubt that a judge, jury, or regular people are going to buy that argument.

t8e56vd4ih• 5 years ago

The recreations could easily be him trying to take ownership of something he feels conflicted about as a way of exerting control over something he had no ability to consent to.

beautiful

Grustaf• 5 years ago

What is it with Americans and the naked body? Babies are supposed to be naked, it's not embarrassing.

We put giant photos of ourselves as babies, often naked, on sticks and wave around when we graduate. I have never heard anyone even hint at that being an issue.

And for the record, breastfeeding is the most natural thing in the world.

ghufran_syed• 5 years ago

"It'd be nice to have a quarter for all the people who have seen my baby penis."

Sounds like the only issue he has with it is that HE didn't get any of the money.

gfo• 5 years ago

Yikes. Despite loving this album, I really thought there might be merit to this lawsuit.

And then... this article. Smells like a money grab to me as well.

dehrmann• 5 years ago

Smells like a money grab

I see what you did, there.

ta1234567890• 5 years ago

And:

It's not the first time Spencer has been asked to recreate the image - he has posed three times before for the album's 10th, 17th and 20th anniversaries.
"I said to the photographer, 'Let's do it naked.' But he thought that would be weird, so I wore my swim shorts," Spencer told the New York Post.

vmception4• 5 years ago

You really think thats a factor huh.

If his parents didn’t sign a release then there is a claim. It doesn't matter if the subject felt good about it for some time. Actually, in your mind, how is that related? Its hard for me to relate so can you elaborate?

The additional claim of it being child pornography is not strong and is to get them to settle faster. Although he says there was an agreement about covering the genitals that seems broken, if there is no document that will be the only tricky part about the case (just in general contractual stipulations), but does also bolster the settlement claim.

ksaj• 5 years ago

"This seems to be a cash grab."

That's exactly what the picture is of - the allure of capitalism hooking you right from the start.

cyberge99• 5 years ago

He could just settle for rights to the cover photo.

Then he could mint it as an NFT and auction it for millions (or peanuts depending on the market at the time).

eli• 5 years ago

Why bother with the rights? He could just auction the concept of him on the cover photo. It's all meaningless anyway.

sydthrowaway• 5 years ago

I remember the NFT hype from 3 months ago. Is it dead yet?

Also what happened to Chia?

casi18• 5 years ago

opensea just reached 70% of ebays volume this week, so no doesnt like nfts are going away anytime soon.

parineum• 5 years ago

Also what happened to Chia?

All I know is that hard drives are still marked up.

mirekrusin• 5 years ago

They should give him this dollar bill (should be worth more now).

gigatexal• 5 years ago

Any lawyers want to weigh in. Surely his parents signed his rights away for the 200 no?

noxer• 5 years ago

https://www.urbandictionary.com/define.php?term=Small%20PP%2...

hn_throwaway_99• 5 years ago

He also alleges the nude image constitutes child pornography... However, Elden's lawyer, Robert Y. Lewis, argues that the inclusion of the dollar bill (which was superimposed after the photograph was taken) makes the minor seem "like a sex worker".

I wish the courts were ok with a response of "Are you fucking kidding me, or are you just batshit insane?" Even remotely arguing that this is somehow like child pornography is a grave disservice to all the actual victims of child porn. I sometimes wonder what it's like to go through life with absolutely no shame.

corndoge3• 5 years ago

At the same time he never consented to a nude image of himself being plastered on one of the most popular albums ever made. Even if it is a cash grab I think he's got a point.

Zelphyr3• 5 years ago

His parents consented for him. If he wants to sue anyone, he can try going after them. I think he'll get about the same outcome as this lawsuit, though.

lifty2• 5 years ago

The consent was given by his legal parent. So he should sue them not Nirvana.

ghaff12• 5 years ago

Given that it was legal content and his parents consented, why is it any different from "stage mothers" and others consenting to (and indeed pushing) their children into any number of ads, photo shoots, TV, film, etc.?

Otherwise any adult who felt embarrassment over their appearance in media as a minor could sue and parental consent to do those activities has no meaning.

ADDED: And if your response is that "But he was nude" then your beef is with the law that didn't make this illegal. There are of course borderline cases. See Brooke Shields in "Pretty Baby" for example which caused quite a bit of controversy at the time. (And, indeed, as I wrote elsewhere, I'm pretty sure no major record label would go near this cover with a 100 foot pole today not because it would likely be illegal but because it would be a lightning rod.)

burnished4• 5 years ago

Is it really an image of "himself" though? Being a baby is more like a larval form, there isn't really a connection for an audience to make between a photo of a newborn and a photo of an adult. What I'm trying to get at is usually when you say something like "nude image of himself" we are used to thinking that the image is an identifying one. But a baby picture isn't identifying in the same way, even to yourself, until some one informs you of the connection. It feels like a different circumstance, you know?

shams93• 5 years ago

If they didn't have a signed release then they're basically using this without permission which is a civil violation.

refurb• 5 years ago

Courts will respond that way, minus the profanity. Usually it’s an immediate approval of a motion to dismiss with prejudice which means final decision and don’t dare even argue about it.

b3morales3• 5 years ago

I wish the courts were ok with a response of

That exists in the concept of "frivolous litigation" https://en.wikipedia.org/wiki/Frivolous_litigation This has been used in response to some "sovereign citizen" cases (https://en.wikipedia.org/wiki/Sovereign_citizen_movement#Leg...), and it can result in penalties like fines.

There's also "vexatious litigation", for when you're effectively trying to use the court system to harass someone.

habitue• 5 years ago

I think there are also opportunities to have a case dismissed before going into the costly parts of a trial like discovery. The judge can dismiss it just based on the merits of the suit, where they just assume all the alleged facts will turn out to be true.

(I am so not a lawyer, would love if a lawyer could correct me)

mywittyname2• 5 years ago

My understanding is that the bar for this is incredibly high, especially vexatious litigation.

mzs4• 5 years ago

This album was released when I was in HS and a classmate was asked by a teacher to turn her t-shirt with the album cover inside-out. She asked why and the teacher said it could be CP. She turned the shirt inside-out. I felt the teacher had a reasonable POV.

Majestic1212• 5 years ago

The point of view is unreasonnable : a child naked is not Porn unless the intent is to make it porn. No one would think to describe a child naked at the beach "porn", why would it be different on an album cover?

feudalism2• 5 years ago

JFC, what kind of mad, backwards world do we live in where people consider a photo of a naked baby to be CP? Every family out there has photos of their children naked as babies.

devwastaken• 5 years ago

Only in the west can an image of a naked baby be intentionally misconstrued as "pornography". It doesn't meet any definitions of pornography, the only reason people think it's "reasonable" is group think.

sandworm1017• 5 years ago

It wasn't child porn when it was created, but times change. I have noticed that the BBC has started censoring the image (QI) whereas British productions in the past have not (TheBoatThatRocked). Jurisprudence changes. Since Nevermind was published, even nudity is no longer a requirement for child porn in the US. While I don't agree, I don't think the question is the total slam dunk it was decades ago.

ghaff12• 5 years ago

Yes; I'm quite confident that this would never be an album cover today. But you can't generally sue of the basis of some past activity that was legal at the time even if it's not today.

mytailorisrich• 5 years ago

It still isn't child porn. There is nothing sexual or obscene about this picture and the purpose isn't so, either. There are many, many works of arts, including religious ones, in which infants are depicted in the same way.

The term is being used for PR and sensationalistic purposes in relation to a civil lawsuit.

ravenstine5• 5 years ago

If he wanted to sue, he really should have just gone for the consent angle and not the child porn one. Who exactly would agree that it's pornographic or exploitative? I doubt the vast majority of reasonable people would see the body of an infant in its natural form as anything but innocent on its own, but what do I know. They should have to demonstrate that the dollar bill makes people see the art as depicting child sex work; if this is requested somehow by the defendants, the glove won't fit. This may be a missing detail, but he should have just asked the record company for some money before escalating it. If he did that and they refused, I'm sure that would have been a part of the news story.

The logical end to the argument is that children should never appear in any kind of commercial media because they can't consent, which... come on man. Worst of all, though I'm no lawyer, it seems like there's definitely a non-zero chance he'll get counter-sued by each defendant when his own lawsuit falls apart.

mLuby• 5 years ago

The logical end to the argument is that children should never appear in any kind of commercial media because they can't consent

That's not so unreasonable, considering how child stardom seems to mess with kids. Maybe better motion capture+deep fake tech will let professional actors appear as kids in media. Abolishing child labor may have seemed as ridiculous a few hundred years ago as this does today.

kevingadd2• 5 years ago

It's normal for a lawsuit to throw every possible thing that could stick in and hope that one of them survives - consent is also part of this lawsuit

lostlogin• 5 years ago

I wish the courts were ok with a response of "Are you fucking kidding me, or are you just batshit insane?"

It didn’t involve the courts (at that stage), but Arkell versus Pressdram comes close to this. If you haven’t come across it before it’s a short and sweet read.

https://lettersofnote.com/2013/08/07/arkell-v-pressdram/

void_mint3• 5 years ago

Eh I mean. There is a naked photo of this person as an infant, that they inherently didn't consent to, being circulated all over the world + internet.

danschumann• 5 years ago

It seems like a shameful lawsuit, but it's human nature to do such things. He still is a baby and still is on the hook. Life is hard enough as it is without seeing people you know profit insanely.

dec0dedab0de2• 5 years ago

I doubt this has any legal standing, but I think the record company should have "did the right thing" and gave him some royalties. At least once it was clear that this was going to be one of the biggest albums of all time.

lmilcin3• 5 years ago

Legal standing:

https://en.wikipedia.org/wiki/Standing_(law)

"In law, standing or locus standing is a condition that a party seeking a legal remedy must show they have by demonstrating to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case."

The guy is on the picture. He has probably been butt of jokes his entire life. He has legal standing.

Legal standing has nothing to do with whether he is or isn't right. It just allows him to present the case.

dec0dedab0de2• 5 years ago

Oh, I guess I meant that I don't think he has a chance of winning. Thank you for pointing that out, I didn't realize standing was an actual legal term.

fourseventy• 5 years ago

Smells like money grab

bgeeek• 5 years ago

It would be quite amusing if the final verdict was, amongst other things, "Never mind"

mastrsushi• 5 years ago

This man can never set foot in a vintage record shop again!

cafard• 5 years ago

If it's any comfort to Mr. Elden, I have never seen the album cover.

honzzz• 5 years ago

I wish I could somehow steer attention from this guy and this topic to how great album it was.

paulpauper• 5 years ago

He should just do an NFT of the cover. probavby make way more $ than any settlement

bdavid21wnec• 5 years ago

If this guy had a brain, he would be trying to get the rights to his image and instead create an NFT of the cover and sell it for millions. Instead I hope he gets nothing

eplanit• 5 years ago

The fact that he re-created the image on his own several times as a teenager and as an adult, along with his expression of seeing it all as a benefit: "It's always been a positive thing and opened doors for me... when he heard I was the Nirvana baby, he thought that was really cool." should get the suit properly tossed out. I say "should"...

balls1876• 5 years ago

In my opinion, this is one of the downfalls of our (US) legal system. That it expects too much of individuals at a young age.

It's very possible this is a cash grab. But it's also very possible the plantiff has come to believe what happened in the past was wrong, and truly wants recompense.

Borrible• 5 years ago

So after 30 years, he's still after that dollar?

So apparently he still can't keep his head above water on his own.

Well my sympathy goes more to guys like Aqualung and its painter anyway:

https://theoutline.com/post/4490/jethro-tull-aqualung-cover-...

https://news.ycombinator.com/item?id=17052400

If I were Spencer Elden, I wouldn't hold my breath on that one.

Nevermind.

toyg• 5 years ago

Looks like Spencer wants a cracker. I hope he gets forced to make all apologies.

iAm25626• 5 years ago

Found the Nirvana fan. Never know how dark the song "Polly" is about until recently.

Ceiling• 5 years ago

He literally has “Nevermind” as a tattoo across his chest. You can see it in the swimming picture.

drewzero12• 5 years ago

I've been thinking about this image recently thanks to the cover image of The "Weird Al"-phabet podcast[0] which was a parody of the cover of Weird Al Yankovic's 1992 album Off the Deep End[1], which in turn was a parody of the Nevermind cover art. Weird Al's work has often stood on the shoulders of giants, but I appreciate the way he adds something significant to it (almost) every time.

[0] https://podcasts.apple.com/us/podcast/the-weird-al-phabet/id...

[1] https://en.wikipedia.org/wiki/Off_the_Deep_End#/media/File:W...

Romulus968• 5 years ago

He must be broke.

ziml77• 5 years ago

If this case wins on the argument that it's sexual, doesn't that mean that everyone who owns a copy of the album possesses child porn? At the very least it certainly must mean that his parents and the photographer need to be jailed for producing child porn.

VelkaMorava• 5 years ago

Funny how the incriminating album cover is a prophetic message in itself; the person portrayed on it chasing after money.

On one hand I get it, he didn't consent and what not. But the guy is 30. Why didn't he sue 10 years ago? I have feeling it's because he's trying to ride the wave of political correctness and cancel culture...

azinman22• 5 years ago

That’s because it’s all a giant reach, and in reality, is probably the most famous thing he’s ever done, and thus he can’t get past it.

babyshake• 5 years ago

It's difficult to imagine being ashamed of being the baby on that album cover. That seems like one of the ultimate fun facts to share about yourself.

jasonhansel2• 5 years ago

I'm surprised that so many comments here are criticizing the plaintiff. It seems obvious to me that (a) nude images of someone should only be distributed with that person's consent, and that (b) 4-year-olds are not old enough to consent to such things. Whether he has a legal case is another issue, but it seems clear to me that morally Elder is in the right.

balls1876• 5 years ago

I think more nuanced question--at what point should consent transfer from the legal guardian to the individual?

In the age of the internet, should consent given on behalf of a minor be in perpetuity?

jasonhansel2• 5 years ago

I don't think that consent by a legal guardian is ever sufficient in this sort of case. Distributing nude images of a person should require the consent of that person, not (just) that of a legal guardian.

johnp271• 5 years ago

The individual in the photo is 4 'months' old. Arguably 4 month old babies being nude should not be a big deal. I suspect in much of the world this is the normal attire for a 4 month old. I guess videos of babies being born (see for instance "Call the Midwife" on BBC) should now require a signed consent from the embryo first?

booleandilemma• 5 years ago

Looks like he never grew up.

codingdave• 5 years ago

IANAL of course, but if they had no authorization to use the photo, that sounds like a plausible claim. The CP charges do not sound plausible.

But that is how our legal system works - you don't ask for what you really believe is fair, you throw everything at the wall to see what sticks. I suspect that the CP claim is just for negotiation, to get a settlement on the more reasonable claim.

tenfourwookie• 5 years ago

The tables will turn on this one. It's not just frivolous, it's damagingly so. World famous album and band beloved by all tarnished by greed and frivolity. Dude will be countersued into the ground.

P.S. I once posted a naked baby pic of me on a dating site and it almost got me in a lot of trouble.

foxfluff• 5 years ago

What kind of trouble did it almost get you in?

rhacker• 5 years ago

This is like one of those things where it wasn't really associated with anyone specific, until now.

And I do wonder if he TELLS people he randomly meets that he's the nude swimming nirvana baby.

All that being said, people change over their lifetime and this is likely a result of that.

olivermarks• 5 years ago

This is a nightmare combination of bowdlerization of an important grunge era image and a sad cash grab. I wonder what went on with negotiations/haggling before the court case was filed. Very sad.

lmilcin3• 5 years ago

The legal case also alleges that Nirvana had promised to cover Elden's genitals with a sticker, but the agreement was not upheld.

But erlier:

Elden says his parents never signed a release authorising the use of his image on the album.

Umm... get your story straight?

balls1876• 5 years ago

Not really.

If the agreement was verbal, there would not be a signed release.

lmilcin3• 5 years ago

That's my point. There either was a legal contract or not. Verbal contract is still legal contract, but paper is preferred because it is easier to prove it after the fact.

If there wasn't some kind of contract the second part (promising to use tape on genitals) would seem to contradict it.

frereubu• 5 years ago

Can't help but think of the lyrics to Frances Farmer Will Have Her Revenge on Seattle:

  It's so relieving to know that you're leaving
  As soon as you get paid
  It's so relaxing to hear that you're asking
  Whenever you get your way
  It's so soothing to know that you'll sue me
  Starting to sound the same

WesolyKubeczek2• 5 years ago

In a sick dystopian world, which our world is not even approaching, the organization designated as the sole arbiter of what is to be considered child pornography, added the album cover to the registry of CSAM on the grounds that the plaintiff's arguments had something to them that resonated deeply with the people running the organization.

Overnight, all Nirvana fans in the country became equated to sick pedophiles in possession of child pornography. Many got jailed, most just got onto the sex offenders list for life with no recourse available.

hermitsings• 5 years ago

"Smells like greed spirit." https://twitter.com/fookingods/status/1430468274412670976

umvi• 5 years ago

One of America's problems: people seeing companies/organizations/individuals with fat stacks and trying to (ab)use the courts to get an easy piece of the pie for themselves. Liability lawsuits ("my kid slipped and fell on your playground, give me a million dollars"), patent trolling, and cash grabs like this just make me shake my head.

stef25• 5 years ago

This article from 2015 isn't going to do him much good

https://www.theguardian.com/artanddesign/2015/jan/16/thats-m...

"It is a weird thing to get my head around, being part of such a culturally iconic image. But it’s always been a positive thing and opened doors for me. I’m 23 now and an artist, and this story gave me an opportunity to work with Shepard Fairey for five years, which was an awesome experience."

"It helps with girls, too"

"I might have one of the most famous penises in the music industry, but no one would ever know that to look at me. Sooner or later, I want to create a print of a real-deal re-enactment shot, completely naked. Why not? I think it would be fun."

m3kw9• 5 years ago

Another way of saying I desperately need money no matter how stupid the method

wjp3• 5 years ago

Waiting for the Apple CSAM detection for the album art in 3...2...1...

sharken• 5 years ago

Maybe I'm being a cynic, but why wait until the age of 30 to sue.

It's more likely that Corona has taken a large chunk out of the cash flow, and now it would be nice with a boost of the finances.

kabdib• 5 years ago

He's had years to do this, and didn't. I suspect it'll get dismissed for laches.

woliveirajr• 5 years ago

Streisand effect [0] in action, twice.

First, now he'll be even more known.

Second, the vast majority that didn't think about "sex worker" will begin to associate such idea.

[0] https://en.wikipedia.org/wiki/Streisand_effect

throw7• 5 years ago

He should have sued his parents.

ramraj073• 5 years ago

Another unpopular opinion here but cash grab or not the facts are clear - he was a baby, he didn’t consent to the photo, and a lot of people made a lot of money from it.

The only internally consistent solution I can see is that children below age of consent should not be allowed to contribute to commercial art in any form. That’d mean no more child actors, and that would sound heretical to many, but I see no other solutio.

Zvez• 5 years ago

By this logic children can't have any surgical procedures, because u need to consent for that. That's why children have legal representatives.

ramraj073• 5 years ago

I’m assuming a legal representative is still not enough to get a child a tattoo? Isn’t that the more appropriate comparison? a child needs medical procedures. It doesn’t have to model.

nate_meurer5• 5 years ago

Right now I'm looking at the instructions for a pediatric otoscope, showing how to use it on an infant, who probably didn't consent to this use of his photo.

There are literally billions of photos of infants and young children used in instruction manuals, text books, advertising, and as stock photos.

Should all of these be made illegal? Should manufacturers and advertisers be sued for using these photos without the subjects' consent?

ramraj073• 5 years ago

I mean why not? Seems like a fairly small price to pay, ask them to draw it out.

nilawafer• 5 years ago

In 1991, the year "Nevermind" was released, the band Nirvana was not yet nationally known, and nowhere close in popularity to the internationally known super-legendary band they are viewed as now. Who knows if Nirvana would have even reached such levels of fame if Kurt Cobain were still alive today?

Nirvana, before the release of "Nevermind", their first major label release ever, was just a local garage band from Aberdeen, WA (not even from Seattle). Nobody cared about them except some high school kids from Washington state who had seen them live. There was no internet, smart phones, or social media shaping our values and popular culture. People still listened to the radio and bought cassette tapes and CDs at local record stores. The majority of the social standards we are discussing here and now likely didn't even exist as widely shared common values in 1991, over 30 years ago.

Dude wasn't the "Nirvana baby" - he was just the neighbor/ baby of friend of the family who happened to be there at the time. If they didn't use him, any other baby would have been fine. The idea of the photo/ album cover design would have been made into reality either way with or without him as the specific baby.

mixmastamyk2• 5 years ago

Much of their success was due to heavy rotation on MTV. The album cover had little to do with it in my opinion, was funny but didn't particularly affect the grunge movement as far as I can see.

warkdarrior• 5 years ago

Quick, let's add that photo to the NCEC(sp?) database and have Apple scan all iPhones worldwide for it!

carl_dr• 5 years ago

I’m late to this post, but I’ve read through it and can’t see this addressed, so here is a genuine question.

What is the law in the US regarding photos captured either in public or on private property?

So I invite my friends around, one couple have a young son, another has a camera. The latter takes a picture of the former swimming in my pool.

Later, the latter sells the photo he took to a record company who put it on then cover of what would be one of the most critically acclaimed albums of the decade.

Is the law in the US that the photographer needs to get a release for any person in the photo? I don’t think that’s the case here in the UK, but I am willing to be corrected.

Here, I think if I take a photo anywhere where I am permitted, I own the copyright to the picture and can do anything I like with it. (I understand there are some exceptions, usually involving trademark rather than copyright?)

shadilay• 5 years ago

The ethical concern is consent. The situation would be very different if they paid him as an 18 year old to use his baby picture but that's not what happened. Using naked children in commercial work is always on sketchy ground ethically.

sowbug• 5 years ago

One interesting outcome of this lawsuit, whether it's successful or not, is that any future sort of artwork like this will be produced with GAN-based technology such as https://thispersondoesnotexist.com/. Why risk questions of human consent when humans can be taken out of the loop?

Someone might even monetize it by running a GAN service that, for a fee, hashes all an image's GAN inputs plus a snapshot of the code and publishes the hash in an Ethereum block to prove that (1) the image really was produced synthetically, and (2) it was produced no later than a certain timestamp. TODO: include keyword "NFT" for maximum hype.

timoth3y• 5 years ago

Thirty years latter, and the same baby is still swimming after that dollar.

josh_today• 5 years ago

Being serious, think of the mental toll it must be growing up as the naked baby on that cover

Threeve303• 5 years ago

Nudity is not inherently sexual. It's your default state as a human.

pieterr• 5 years ago

The Joy of Tech's version:

http://www.joyoftech.com/joyoftech/joyarchives/2829.html

Nirvana sued by the man who appeared on Nevermind’s album cover as a baby

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