For an album as iconic as Nirvana’s “Nevermind”, celebrating the 30th anniversary of its release is a special milestone. For this particular record, however, a lawsuit looms on occasion.
Last month, Spencer Elden – who appeared nude on the album cover as a child – filed a lawsuit against Nirvana musicians Dave Grohl and Krist Novoselic, as well as the estate of Kurt Cobain and his widow. , Courtney Love, claiming that they had sex exploited her when they took advantage of her nude image.
He also alleged that the image – which shows him naked in a swimming pool – is child pornography. Fifteen people are named in the lawsuit – including photographer Kirk Weddle – each asking for $ 150,000, according to the New York Times.
Elden claimed in the lawsuit that he suffered “permanent harm” as a result of his involvement in the album.
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The case is made even more complicated by disputed facts. In the lawsuit, Elden claims that neither he nor his parents ever consented to the nude photoshoot, but over the years various media have reported that Elden’s parents consented and were paid $ 250 for the shoot. modeling.
The announcement of the lawsuit raised many eyebrows both inside and outside the music industry, with many questions as to why the lawsuit was filed in the first place – especially since Elden had repeatedly participated in recreations of the iconic photography to celebrate various other anniversaries of the album’s release.
As the federal lawsuit awaits its fate – and faces questions about its authenticity and legal status – entertainment lawyer Tom Lallas told Fox Business he believes the lawsuit is ” dead on arrival “.
“It is very clear, in my opinion, that photographing a naked baby in a swimming pool is not sexually explicit conduct that would violate the laws,” he explained. “… I don’t think a reasonable person can objectively conclude that this image of a four month old baby in a swimming pool is sexually explicit behavior.”
The trial refers to United States v. Dost from 1986, which defined child pornography according to a set of six criteria. The case established that, among other criteria, the focal point and frame of an image helps determine whether the image is considered pornography.
On the cover of the “Nevermind” album, Elden can be seen swimming in the water in pursuit of a dollar bill on a hook. Lallas argues that money is the real focal point of the image, because the image is a “metaphor for capitalism”.
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Lallas also argued that the frame of the picture – a swimming pool – was not “a sexually suggestive setting”.
There is one element of the Dost case that Lallas says carries more weight here – that the child in a given photo is not fully or partially clothed. Elden is known to be naked on the cover, but even that argument is flimsy, he said.
“In this context, every photo of a naked baby would be child pornography,” he said. “I don’t think a reasonable, well-meaning and educated person would ever stand up for this standard.”
The rest of Dost’s criteria – whether the child is depicted in an unnatural pose or in inappropriate attire, given the child’s age, whether the visual representation suggests sexual shyness or a willingness to engage in a sexual activity and whether the visual representation is intended or designed to elicit a sexual response in the viewer – are easily overwhelmed in this case, said Lallas.
“You just have to look at the photograph objectively, it does not meet the legal standard of the law cited in the complaint,” he said. “It does not meet the legal standards of the case law cited in the case.”
Lallas added: “When all of the circumstances are considered I think this lawsuit will be dismissed, I think lawyers run a serious risk of penalties under what we call Rule 11 of the Federal Rules of Court. civil and I think this action and this complaint died on arrival. “
Regarding Elden recreating the photo on several occasions – but notably never nude in any recreation – Lallas said he had proven the “absence of damages” that Elden claimed in his lawsuit.
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“This is a conscious act of an adult to validate the album cover photo and it went way beyond that,” the attorney said. “In interviews, for example, he has indicated in an interview that he wanted the photo of him taken naked as an adult. So this participation, which was voluntary, conscious and intelligent, completely undermines the concept. that it was damaged by the photographer. “
Entertainment attorney Neville Johnson echoed similar sentiments, saying the case “is unlikely to win.”
Johnson said that despite the fact that the cover of “Nevermind” was created “in a commercial context,” its nature as an “artistic creation” separates it from child pornography or even an invasion of privacy.
Additionally, Johnson said the album cover recreations – as well as Elden getting the word “Nevermind” tattooed on his chest – “undermined the viability” of his case.
“Nobody knows who he is,” Johnson said in reference to Elden’s discomfort with strangers having seen his genitals. “He’s made himself famous, he’s been in the limelight now.”
Due to the darkness of the case, Johnson said he believes it is likely that she will not even make it to trial.
“I think it’s probably going to be thrown out,” he shared. “What they can do first is file what’s called a motion to dismiss, which basically says, ‘looking at the facts of your case, it won’t work. It does not equal – something that is compensable, liable to prosecution. “And I think the court could very well dismiss the motion to dismiss.”
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In the event that a motion to dismiss is not filed or is initiated on its own, a motion for summary judgment may be filed, which would similarly attempt to highlight the flaws in a lawsuit.
“It really comes down to judgment for the trier of fact, which could be a judge or jury,” Johnson said. “And would a judge let that go to a jury? I don’t think so. If I was a judge I would say, ‘Nice try and innovative, but it’s not worthy of the judicial system. “