Today, we will be exploring an issue that I’ve had on the backburner for a number of years, but of which a fairly recent Pitchfork article (written by Jazz Monroe) and a court finding brought back to the forefront of my mind.
Naked Nirvana Baby’s Nevermind Pornography Lawsuit DismissedSpencer Elden had claimed that the cover constituted child sexual exploitation
A judge has dismissed a lawsuit alleging that Nirvana’s naked-baby artwork for Nevermind constitutes child sexual exploitation, BBC News reports and documents viewed by Pitchfork confirm. The baby in question, Spencer Elden, who is now 30, claimed he suffered “lifelong damages,” including loss of wages, as a result of the album cover, and described the enterprise as a “sex trafficking venture.” Last month, a lawyer for the band filed to dismiss the lawsuit, arguing that Elden’s claim “is, on its face, not serious.” The lawyer added that the statute of limitations on the claims had expired in 2011. Elden’s team had until December 30 to respond to the motion to dismiss, but missed the deadline.
The surviving members of Nirvana (Dave Grohl and Krist Novoselic), the estate of Kurt Cobain, Courtney Love, photographer Kirk Weddle, the labels that released Nevermind, and other parties were all named as defendants in the lawsuit. In the motion to dismiss, their lawyer said that long before the statute of limitations expired, “Elden knew about the photograph, and knew that he (and not someone else) was the baby in the photograph.” They argued that, for years, Elden had participated in paid campaigns recreating the cover image, in addition to getting the album’s titled tattooed on his chest. If Elden’s claim were true, they said, everybody who owned the album cover would be “guilty of felony possession of child pornography.”
Elden has until January 13 to refile the case with appropriate changes. Pitchfork has reached out to representatives and attorneys for Nirvana, as well as an attorney for Elden, for comment.
As you can see, the January 13th deadline has long since passed. Though this article was published on January 4th (and came to my attention on January 5th), the past month has been a busy one, with me only coming back to this now (February 2ed). Nonetheless, the article presents us with a number of paths that we can pursue.
1.) Did Spencer Elden play along with the fame/infamy that came along with the photograph?
2.) Did Spencer file another appeal before the January 13th deadline?
To answer the first question, yes he did. Twice. For both the 15 and 25 year anniversaries of the release of Nirvana’s Nevermind.
Nirvana baby recreates iconic album cover 25 years later
The naked swimming baby from the cover of the groundbreaking Nirvana album “Nevermind” re-enacted the image for the record’s 25th anniversary — this time wearing clothes.
Spencer Elden, 25, wanted to go au naturel when he made a splash to honor the legendary grunge band, he told The Post.
“I said to the photographer, ‘Let’s do it naked.’ But he thought that would be weird, so I wore my swim shorts,” said Elden, an artist from LA.
* * *
Elden did the same thing 10 years ago, in honor of the album’s 15th anniversary.
The article also notes that his parents were paid $200 back in 1991 for allowing the photograph of their son to be taken. Boy, did they get screwed over. Though the article also notes that Spencer accepted $200 from a photographer to again recreate the iconic photograph back in 2016.
Dude . . .
As for whether or not Spencer followed through with the appeal, it appears that he did in fact refile the suit.
The man who appeared as a naked baby on Nirvana’s “Nevermind” album has filed a new lawsuit alleging the image is child porn — just weeks after a judge tossed his original case.
Spencer Elden, 30, filed the new complaint against Kurt Cobain’s estate and Nirvana’s surviving members in California federal court on Thursday.
The new lawsuit includes a declaration from the album’s graphic designer that Elden’s lawyers argue proves the band and record label, Geffen Records, deliberately sought to display baby Elden’s penis and exploit the image for commercial gain.
Elden claims in the lawsuit that he has suffered “lifelong damages” as a result of having his naked body plastered on the 1991 album cover.
Though this has yet to make its way through the court system, I have my doubts that he is going to get any further with his case. After all, there is evidence in the public record of him, in fact, embracing his unique (though arguably exploitative) history.
Do I doubt that the image has in fact closed some doors in terms of his pursuits? No.
Do I think that the image has bolstered far more than hindered his future prospects? Yes.
Though this lawsuit comes across as a sign of him running into hard times recently, it’s hard to believe that the iconic photo has not helped him in his modelling career at least a little. I mean, even though it isn’t mentioned, the guy plays up his very similar looks to Kurt Cobain by keeping his hair long! One would think that someone who is traumatized by their association to such a phenomenon would do everything they can to distance themselves from it. As opposed to leaning into it.
I may be missing things in my critique. Maybe there is context to be found that isn’t at all obvious. But even though this does in fact seem like a fruitless lawsuit (meritless? THAT is definitely debatable outside of the legal framework), I see Spencer doing well for himself with or without embracing his Nevermind infamy.
While it looks like Spencer sealed his legal fate decades ago, this article does in fact raise a very interesting legal situation regarding the use of social media. At the same time, we will explore a very drastic difference between how past generations stored precious memories, and how modern generations do so.
Being 33, I am old enough to have parents that had albums full of childhood photos and VHS tapes filled with various childhood events. When I think of these forms of storage, they are about as secure as you can get in terms of privacy. Aside from the people tasked with developing the photos or transferring the video to VHS, the photos never left your possession.
The Robin Williams thriller One Hour Photo (2002) serves as a brilliant time capsule in terms of the unlikely circumstances in which your privacy may be breached when it comes to photo prints.
We all know where things went from here. First the transition to digital cameras, and seemingly a year later, to phones. And along with the transition from digital to phones also came a transition of where much of this material was/is stored. From various media kept in and around the home, to public-facing social media platforms or private-oriented cloud servers elsewhere (potentially not even in the same country). Since the amount of available space for storing this personal content has increased to essentially infinity in many cases, the amount of material many of us are uploading has also hugely increased. Once reserved for special moments like holidays or birthday parties, these days any time is a good time to share a moment. Anytime, anywhere.
Being responsible for their children until the age of 18, many parents now document nearly every waking moment of their children’s existence and share it on various social media entities. Though some apps only make this material available for a short time, it may sit up on other platforms essentially forever. Due to legally binding TOS agreements that are agreed to upon parents signing up for various services, the child may well have lost control of their right to privacy before they even reach the age at which they can talk. Parents consent on their behalf to social media terms of service which claim ownership over any content they upload, and thus they are on the way to losing any autonomy over their photographic likeness before they are even out of diapers.
Though the same can now be said of a good number of my childhood photos (most have been scanned and now are posted online), the big difference was that I (for the most part) knew about this and had a choice in the matter. Of course, even this isn’t foolproof (I’m sure we all have a family member with a tendency of oversharing). But at least I am aware of it, and (at least for the most part) had the chance to put a stop to this public display of my likeness if I so choose. It’s a privilege that isn’t going to be available to an entire generation that has (or IS) growing up within this increasingly digitally saturated paradigm.
Though this would include the Zoomers of gen Z (a generation that has for the most part embraced this technology, it just being a part of their everyday life as they grew up), I’m talking of the Alphas at this point. Raised in the social media paradigm, given the current status quo, they will never have a choice of whether or not they want to opt-in or out. Because the choice has already been made for them, long before they ever were conscious that they even had a choice.
This brings me to a realization of ourselves. In a sense, none of us have the choice to opt-out at this point either.
Many people make hay of doing things like closing Facebook accounts and leaving other social media sites. While I don’t doubt that it looks like you are making a difference (be it in the context of yourself, or in the wider world), one has to question the effectiveness of such actions. Both because of how monopolized many aspects of online life have become (how many people in your circle use Facebook Messenger or Whatsapp?), and because you don’t need to have an account in many of these platforms for them to track your activities online.
While I am venturing into territory that is somewhat off-topic to where I began (online tracking VS choosing to control your identity and likeness online), they both intersect in the sense that we have very little control of our data once we choose (or have the choice made for us by proxy) to make it available for whatever reason. Consider some time in the future in which you may want to completely erase your online identity for any reason. You can delete photos and social media profiles, but you don’t have much control of what lives on in the back-end servers of these companies. After all, consumer data is the gold in this evolving realm in which we live.
Or to step outside of the social media framework, what about a company that you dealt with in passing? A company that you no longer deal with?
For example, a foreign airline that you gave your credit card, passport and other information for a trip that you are fairly certain to never make again. A hotel chain that you may or may not visit again. Even a phone company that you may have previously dealt with, or never dealt with but still shared personal information with (rejected due to inadequate credit?).
While many companies quietly hoard consumer data for undetermined amounts of time, I can easily provide examples of data breaches exposing such practices within the industries listed above.
Sita (Singapure Airlines, Luftunsa, United and Others)
While it should be noted that the SITA breach didn’t seem to expose much outside of frequent flyer numbers, many of these breaches (including that of Air India) tend to contain much more information.
Starwood Hotels Group AKA Marriot Hotels
While the presence of likeness photographs living for eternity on social media platforms (anyone still have an active myspace account that was long since forgotten about?) and zombie consumer data hoarded by various companies may seem like 2 different things, they are in fact connected in the lack of control we have in reining in either. As long as companies are not held to high standards in terms of both data retention policies and cyber security, WE are the ones that will continue to pay the price. Given that the datasets that companies will be collecting are only going to diversify in the coming years (biometric data?), this aught be an issue on everyone’s radar.
There is a reason why I would never send a sample of my DNA to a private company for ancestry testing (and I would hope no one close to me would, either). Aside from the results being questionable to begin with, what happens to the DNA information afterward?
At the moment, it’s a convenient repository for police agencies to utilize in investigations. But what about in the future?
What will your DNA be worth?