Last Wednesday, the 25th, the baby featured on the cover of Nirvana's album Nevermind filed a lawsuit against the band accusing them of sexual exploitation and child pornography, among other things, because of the photo.
Spencer Elden , who was four months old when the recordings were made exclusively for the project, alleges "extreme emotional distress" in the lawsuit filed against the record label and former members of Nirvana.
Rolling Stone magazine consulted four lawyers with years of experience in child pornography cases and knowledge of the California constitution, where the lawsuit was filed, to understand whether the case has legal merit.
The four professionals – Matthew Matejcek (Beles & Beles), Paul Wallin (Wallin & Klarich), Christopher Morales and Dimitri Gorin (Eisner and Gorin) – agree that the case should be dismissed on all central points. See below for details.
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Image rights
Although Elden's family received approximately $200 for the photos, the prosecution alleges that they never signed any image release form or contract regarding the photographs. If proven, the case would not be accepted because the statute of limitations for oral contracts is only two years.
Child pornography
In the lawsuit, the photo of the baby swimming is accused of placing the child in the position of "a sex worker, clinging to a dollar bill," which allegedly constitutes child pornography.
The lawyers interviewed by Rolling Stone agree that "no reasonable person" would accept the image as a record created to incite lust or sexualize the baby in question.
Statute of limitations for the charges
Even if it were a case of an image interpreted as child sexual content, once again the statute of limitations would be an impediment: victims of childhood sexual crimes have eight years after reaching adulthood to file a complaint. The only exception is in the case of a psychological report proving that the alleged victim was unable to understand the harm. In these cases, there is a three-year period after the abuse is acknowledged to initiate legal proceedings.
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Nirvana's intention
Another point raised by the lawyers is the lack of evidence to accuse members of Nirvana or Kirk Weddle , the photographer of the session, of having lewd intentions when taking the photograph.
Generally interpreted as a commentary on capitalism, the photo did not suffer censorship or difficulties in being marketed – precisely because the general public never interpreted it as inappropriate.
At the time of the release, the record label didn't want to show the child's penis, and Kurt Cobain suggested covering the baby's genitals with a sticker that read, "If you're offended by this, you must be a closet pedophile." There was no need to use this alternative version.
Nirvana's baby recreated the photo.
Another factor that could harm Elden's case are interviews about the album cover and new versions of the Nevermind cover created after he was an adult, such as on the band's 25th anniversary. Despite demonstrating conflicting feelings about being tied to the work since childhood and the lack of choice in that situation, these records could be unfavorable in a possible trial, as they may indicate that there was no real harm.
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