For the publisher: While I generally appreciate Robin Abcarian’s chronicles, the fact that it gives credence to the claim that the photo of Spencer Elden as a naked child on the cover of Nirvana’s 1991 album “Nevermind” is child pornography ignores thousands of years of artists using a naked baby to make a political or social point.
According to Elden’s analysis, the baby John the Baptist showing the baby Jesus a fragile bird in Raphael’s “Madonna with Goldfinch” was obviously painted standing at an odd angle for the sole purpose of displaying his genitals. . The frontal boy of Boucher’s “Captive Cupid” is in the middle of an orgy, and the child of Delacroix’s “Medea” is apparently in sadomasochism.
I am not an art historian, but I am a lawyer, and abuses like this trial degrade the already fragile public belief in the rationality and fairness of our legal system.
Stéphanie Scher, Los Angeles
For the publisher: Although I was a member of the State Bar of California, I have no expertise in the area of law related to Elden’s trial. However, I think Abcarian missed the boat on several points.
First, Elden’s parents had the right to sell his image given his age. It turns out they got a bad deal. If they think they were misled as to how photography would be used, they should have sued years ago.
If Elden thinks his parents should have sued, his cause of action should be against them. How does the statute of limitations not prevent this trial?
Second, Elden’s attorney’s assessment of the so-called Dost test for child pornography can be characterized as far-fetched. Is water suggestive of sexual activity? Is it intended to elicit a sexual response from the viewer? Barely.
I’m sorry Elden now feels violated, but I think it’s too late for the fair. Still, the fancy thing for Nirvana to do would be to scramble the offending party in the future (and, to be even classier, cut Elden off a portion of the proceeds).
Andrew E. Rubin, Los Angeles