A jury has yet to vote, if the case should make it to court, on whether the former members of Nirvana and their associates sexually exploited a child by putting an unclothed four-month-old boy on the cover of the classic 1991 album Nevermind.
But the general public has done a lot of weighing in on the merits of the lawsuit filed by 30-year-old Spencer Elden over the image. And there’s a lot of sympathy for the fact that Elden’s family was only ever paid US$200 (approx. $276) for a photo seen on a reported 30 million album covers and untold further millions of merch items.
That it was “child pornography,” though? That hasn’t been, and it’s safe to say still isn’t, a majority opinion in Kurt Cobain-loving America.
Elden’s lawyers, though, point out that this case isn’t being put to a popular vote — in their view, it will be decided by a jury they believe will favour their contention that the world-famous image constitutes the sexual exploitation of an infant who has spent the rest of his life trying to come to terms with it.
In the wake of the news of the lawsuit filed Tuesday in California’s federal court, Elden’s legal team is explaining the rationale behind the brief. (Reps for the defendants have so far not commented.) In case there’s any question over why the suit hits the child abuse angle so hard, as opposed to basic IP or rights issues, it should be noted that the New York-based Marsh Law Firm specialises in child sexual exploitation. Much of the public is expressing its cynicism about the lawsuit, but Maggie Mabie, a lawyer handling the case who spoke with Variety on Wednesday, firmly believes in this case as part of their mission. (Elden himself is declining to comment.)
VARIETY: Were you expecting this story to be as explosive as it was in the music world? Give how much people love or are just interested in Nirvana, you probably knew this would be a very big deal.
MABIE: We knew that the case would get some attention because of the defendants. But we did not expect this level of attention whatsoever. Frankly, we did not expect it to be this much of a spectacle. It was our intention to get the image redacted. And so our goal is really to have justice served by Spencer and not to get this put in the media. Spencer was not looking forward to any media attention, and we’ve tried to keep him out of the media as best we can… We consider it to be a historic reckoning because we know the defendants are very famous, so we do understand and comprehended that it would come with attention — the level of which was unpredicted.
People have of course combed over the interviews and photo shoots he’s done over the years, where he would seem to gladly recreate the pose in swimming pools, as a grown person. And he seemed to be participating in the celebration of anniversaries of the album, but did make increasingly ambivalent statements over the years about how he felt about being an unwitting participant in the phenomenon. He finally used the words “pissed off” in an interview five years ago. Yet he hasn’t rebuffed the attention, and has a Nevermind tattoo. So why did it take 30 years for him to decide what you’re now contending?
Spencer actually has the opportunity to sue (even) now because the image is continually being distributed. And each and every time there is an anniversary, that reminder comes to him in a way that is very invasive. He has been asked to participate in press interviews surrounding the anniversary throughout his life, and tried to make the best of a very unfortunate situation he was literally thrown into at four months old. But he has always expressed mixed feelings.
I think when something like this happens, the only person who can understand what it’s like to be in Spencer’s shoes is Spencer. That being said, these are not new feelings. He has always felt invaded. Even as a child, Spencer expressed that this was uncomfortable, and he doesn’t like the way that this puts him in a place where he really can’t (protest) that it’s an invasion of his own privacy, because people come to defend the band, as opposed to protect Spencer… So the reason it comes now, as opposed to times before, is really because, while Spencer’s had this cause of action all the while, it takes a very long time when you are a victim of these kinds of image abuse crimes to really understand how you’ve been damaged. And it takes quite a long time for a lawsuit like this to develop when you have sophisticated defendants.
This juncture in his life has probably come about because he’s become an adult, and he’s understanding the way that this has affected him. When you’re a kid, your brain isn’t developed enough to fully understand your trauma.
Let’s be clear. The recreation of the image (in the anniversary photo shoots) has not been saying that he agrees with the displaying of his genitals when he was a baby. In those images, he is an adult, and he is clothed. They’re very different. Saying that you don’t contest being (associated with) Nirvana is very different from saying you don’t appreciate this invasion of your privacy and your child pornography being spread across the world.
Some have pointed toward a detail in the lawsuit contending that his father never signed a release when the photo shoot happened in 1991, saying that that sounds more actionable or provable than the child porn argument. But in your suit, that lack of a release is almost treated as an incidental detail. How important is that detail to this case, or are they completely separate issues?
Well, I can tell you that the release issue is incidental. You cannot consent to the use of child pornography (either way). It all needs to be read in context, because participating in this event which eventually created the photo was something (where) they did not give consent to the use of this particular image, nor did they know what it would look like or what it would be used for. This is all a part of the way that this child pornography was then used to then be exploited and commercialised in a way that sold Nirvana’s album.
Searching what people have said over the years about the album cover, there are certainly a lot of forums in which you can find people asking if Nirvana and the record company publishing a nude photo of a baby was legal. But it’s hard to find a preponderance of opinion of people considering it child porn. To prove the case, do you need to prove that the general public thought of or thinks of it that way?
The public opinion isn’t necessarily important to this lawsuit. However, I can tell you that I don’t think the public has looked at it through this lens. And what you need to do is take the factor analysis, which lays out factors by which a jury can review an image and determine whether or not it’s child pornography. A jury is who gets to decide. That image will be up for a question of fact that the jury gets to place this test on and analyse.
It’s clearly understood in U.S. law that a nude image of an infant isn’t automatically child pornography — that it has to be sexualised. What is your emphasis, as a legal team, on showing this does cross the line into child porn and isn’t understood as, as Kurt Cobain would have had it, a non-sexualised statement on capitalism?
Well, I don’t want to give away the theory of my case, and there are certain parts of attorney (confidentiality) that make it so that I can’t go into all of the details here. That being said, it’s very clear that when the focus of a photo is directed toward genitalia of a child, it is to be deemed child pornography. And in California, for instance, the genitals or pubic areas that are partially clad may also be considered child pornography.
The way that this image came about, they had to activate Spencer’s gag reflex. They threw him in the water multiple times. They positioned the camera such that his genitals would be enlarged, and they made the focal point of the image his genitalia. This is very much in line with all of the factors that you use to analySe whether or not an image constitutes child pornography. So when you take the case law and you take the image and you make the comparison, that is what is going to take the day in this case.
So to put it in the plainest language possible, when people look at the album cover, the primary thing they think of is not “Oh, there’s a statement about capitalism” or “Why is there a dollar on a hook” or even “Hey, look, there’s a baby underwater” but “Hey, look at that baby’s penis”?
I think the focal point of the image is the genitalia. I think that before this album was released, Nirvana was a very unknown grunge band. And this was a part of a scheme that was designed to sell records, and it was something that they did as a marketing tactic. So it is the exploitation of child pornography, and they knew it when they did it in the first place. That’s why it resulted in so many of these albums being sold.
So you’d say the shock value of the album cover is a big part of why Nevermind blew up as an album?
You’ve said this is not a case that you took and filed overnight, that you’ve been working with Spencer for some time now on it.
I can’t give you a specific timeframe off the top of my head, but it has been over a year.
Just in terms of the monetary damages being asked for, the suit seems to be asking for at least $150,000 per defendant (the list of which includes Dave Grohl, Krist Novoselic, Cobain estate executor Courtney Love, and the album’s photographer, art director and associated record companies).
That’s not what it says. I know people have been reading it that way, but it doesn’t say per defendant. The statute is not your typical torts statute. Masha’s Law (a federal civil remedy) provides for victims of child pornography to seek liquidated damages, meaning that they don’t have to prove up their damages. It allows victims to not have to be re-victimised throughout the court proceeding — and at that level, you are seeking only the statutory damages, which is US$150,000 (approx. $207,000) per violation, not per defendant. That’s if Spencer were to opt not to seek full damages. The way we’ve drafted the lawsuit, it is an option, but he can seek either strategy going forward. It is just the way we plead the case. We have not sought US$150,000 only, or US$150,000 per defendant. That’s people who aren’t necessarily lawyers interpreting it in that way, but it’s not how the statute operates.
Was there a reason for including as a defendant the original Nirvana drummer (Chad Channing), who had been replaced by Dave Grohl by 1991 and wasn’t around for Nevermind? That seemed puzzling.
This is a suit for damages that arises out of profiting from the exploitation of the image, and at this state of litigation, we are unsure whether or not this particular defendant profited from this image and any of the proceeds Nirvana eventually earned from this image. That being said, you know, our timeline on the band, we understand he wasn’t there. We don’t know. And we won’t know until we get discovery what his payout looks like and whether or not he profited from this. We do believe he did.
Were there attempts to negotiate a settlement with all these parties beforehand, or contact with them to get their position?
Any information about settlement is always confidential.
Can you say if you’ve been in contact with any of the defendants’ legal teams now?
I can’t say.
The lawsuit mentions other album covers that have used nude juveniles, usually older than infants, like famous Blind Faith, Scorpions and Van Halen covers. It might seem surprising that those never resulted in any action or litigation, at least that we know of. Do you think there are any precedents for this case?
We centralise our practice in child pornography crimes. We’ve seen many suits of this nature for similarly situated images. We can say there is a precedent for this kind of action, and we’ve sued people under this exact statute in the past. Whether there’s any precedent against particular defendants who are also music makers, I wouldn’t know, because what that would require is (1), making sure you can filter for settlements, and (2), those individuals would have to seek counsel and then figure out how to hold those large defendants accountable — which is a very sad thing to have to ask of a victim, especially someone who’s been exploited for sexual purposes. So any lack thereof of precedent, which I’m not sure there is, would potentially be attributable to the fact that it’s very hard for a victim of something like this to come forward.
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