“Recently I’ve been thinking, ‘What if I wasn’t OK with my freaking penis being shown to everybody?'” Spencer Elden said in 2016. And after thinking about that for another five years or so, and probably talking to a series of puzzled lawyers, he decided to sue. Now, in many situations, a nonconsensual-freaking-penis-showing-incident would be not at all OK, and even grounds for a lawsuit. But this is one of the possibly rare situations in which such a lawsuit is, in fact, completely stupid.
As you’ve probably guessed after looking at the image above, or at least after reading the headline, because those are a couple of pretty solid clues right there, Spencer Elden is the human infant who appeared on the cover of Nirvana’s 1991 album Nevermind. This album, of course, was enormously successful; its impact was so dramatic that Guy Picciotto, leader of another band active at the time (Fugazi), said that compared to Nevermind “our record could have been a hobo pissing in a forest for the amount of impact it had…. It felt llike we were playing ukuleles all of a sudden.” I have nothing against hobos or ukulele bands, really, but that seems pretty accurate. More than 30 milliion copies of Nevermind have been sold, and the cover image, which shows a baby swimming toward a fishhook baited with a dollar bill, is one of the most iconic in American pop music.
Spencer Elden, whose parents got $200 for allowing his picture to be taken for the album, has had very mixed feelings about this over the years.
On the one hand, he plainly enjoys the almost-famousness to some extent. He has “Nevermind” tattooed on his chest, which probably didn’t happen by accident. And he has repeatedly recreated the famous pose himself over the years, including for the album’s 25th anniversary, when he told the New York Post that it was “cool but weird to be part of something so important that I don’t even remember.” So he has often seemed to be pretty much OK with the whole thing.
But because his lawsuit accuses the defendants of exploiting his image for purposes of child pornography, it kind of gives the impression he might have changed his mind about that.
Or that he’s decided he might be able to get more than $200, or whatever the equivalent in today’s money would be of that portion of his parents’ estate, out of the defendants by filing this lawsuit. I mean, who can say?
As you can see from the complaint (embedded below), I am not at all exaggerating about the allegations Elden makes in this lawsuit, which is based solely on the claim that the defendants—who include not just the surviving members of Nirvana but also the dead one, as well as Nirvana L.L.C. and several record companies (he is not suing his parents)—violated multiple subsections of 18 U.S.C. section 2252A. In this telling, what you might have thought was a funny picture of a four-month-old baby in a pool was, in fact, “commercial sexual exploitation” of said baby by a gang of international baby exploiters. In perhaps the stupidest of the allegations, the complaint accuses defendants of deliberately depicting Baby Spencer “like a sex worker,” because he is grabbing for a dollar bill being dangled in front of him while naked. Read it for yourself, though, because there are other candidates for “stupidest allegation.” But that’s in the top three.
This, I’m happy to say, is not my field, but the 20–30 seconds of research I did just now strongly suggests to me that this complaint is not just baseless, but frivolous and even sanctionable. Section 2252A does provide a civil remedy for any person aggrieved by the prohibited conduct, but the statute of limitations is 10 years after the victim (1) discovers the claim or (2) reaches the age of 18. See 18 U.S.C. § 2255(b). (There is no statute of limitations for prosecuting the crime, but there is one for seeking a civil remedy.) That time has long since run out. This is setting aside the fact that the statute only applies to depictions of a minor engaging in “sexually explicit conduct” (18 U.S.C. § 2256(8)), which is not what the cover of Nevermind depicts. If you want to dispute that, I’m not listening until after you go get vaccinated, genius, and then I’m still not listening because the statute of limitations has obviously run. (No, you can’t see his baby business in the image above because that’s the cropped image Variety used, not because I think that part of the image is dirty. Are you vaccinated yet? Then stop talking.)
Elden told Variety that he continues to have, let’s call it regrets, about the image. “[When] I go to a baseball game and think …, ‘Man, everybody at this baseball game has probably seen my little baby penis,’ I feel like I got part of my human rights revoked.” I don’t think this is on any traditional list of human rights, but those are always evolving. I noticed, though, that when Elden recreated the cover shot in 2016, he seemed to be much less concerned about the potential exposure involved. “I said to the photographer, ‘Let’s do it naked,'” he told the Post. “But he [the photographer] thought that would be weird, so I wore my swim shorts.”
That article says the photographer paid Elden $200 for the shoot, which is more than he should expect to get out of this lawsuit.