The naked baby chasing the dollar bill bait on the cover of Nirvana's iconic "Nevermind" album wants more than a buck from the band, and he's suing them on the grounds of child pornography to get it.
Spencer Elden, 30, filed suit in the U.S. District Court's central district of California seeking at least $150,000 in damages from each of about 10 defendants. Attorney Robert Lewis claims in the suit that by using the photo of then-baby Elden with his genitalia exposed, the defendants sexualized the child. The lawsuit further claims that by altering the image to include the dollar bill on a fish hook, they made him look "like a sex worker."
"Defendants intentionally commercially marketed Spencer's child pornography and leveraged the shocking nature of his image to promote themselves and their music at his expense," the lawsuit reads, in part.
"Defendants used child pornography depicting Spencer as an essential element of a record promotion scheme commonly utilized in the music industry to get attention, wherein album covers posed children in a sexually provocative manner to gain notoriety, drive sales, and garner media attention, and critical reviews."
Nude but nonsexualized images of children are not necessarily considered child pornography under the law: The Department of Justice defines child pornography as "any visual depiction of sexually explicit conduct involving a minor." A common interpretation of the cover image concerns the band's critique of capitalism.
Defendants include surviving members of the band Dave Grohl (now of Foo Fighters) and Kurt Novoselic, as well as Courtney Love (Kurt Cobain's widow and executor of his estate) and a number of record companies connected to the album, some of which are now defunct. The suit also names former Nirvana drummer Chad Channing, who was replaced by Grohl before the album was recorded or the cover was shot.
In a 2015 interview with the Guardian, Elden said, "I might have one of the most famous penises in the music industry, but no one would ever know that to look at me. Sooner or later, I want to create a print of a real-deal reenactment shot, completely naked. Why not? I think it would be fun."
Elden has repeatedly re-created the image over the years (albeit in swim trunks), posing for shoots commemorating the album's various anniversaries. In a New York Post piece coinciding with the 25th anniversary of the album, he is quoted as saying, "I said to the photographer, 'Let's do it naked.' But he thought that would be weird, so I wore my swim shorts ... The anniversary means something to me. It's strange that I did this for five minutes when I was 4 months old and it became this really iconic image ... It's cool but weird to be part of something so important that I don't even remember."
The suit says, in part, "The permanent harm [Elden] has proximately suffered includes but is not limited to extreme and permanent emotional distress with physical manifestations, interference with his normal development and educational progress, lifelong loss of income earning capacity, loss of past and future wages, past and future expenses for medical and psychological treatment, loss of enjoyment of life, and other losses to be described and proven at trial of this matter."
In that Guardian interview, Elder had a more positive take on the experience: "I am glad they chose me. And I am also glad it wasn't for something like a Backstreet Boys album ...
"It's always been a positive thing and opened doors for me. I'm 23 now and an artist and this story gave me an opportunity to work with Shepard Fairey for five years, which was an awesome experience. He is a huge music connoisseur: When he heard I was the Nirvana baby, he thought that was really cool."
The filing also claims no release was signed granting permission for the image's use, though Elden's father, Rick Elden, has said the family received $200 at the time of the shoot. Rick Elden, a friend and sometime assistant of photographer Kirk Weddle (one of the named defendants), told NPR that Weddle "calls us up and was like, 'Hey Rick, wanna make 200 bucks and throw your kid in the drink?,' I was like, 'What's up?' And he's like, 'Well, I'm shooting kids all this week, why don't you meet me at the Rose Bowl, throw your kid in the drink?' And we just had a big party at the pool, and no one had any idea what was going on!"
Weddle did not respond immediately Wednesday to a request for comment.
Apart from the $200, the family later received a platinum album award (one sold at auction in 2015 for about $4,500) and a teddy bear. The album itself turns 30 on Sept. 24.
In other "Nevermind" legacy news, Grohl recently said, "I don't like listening to that record. It's a weird one for me."
Nirvana's former drummer wasn't referencing Elden's suit or the quality of the record. In an excerpt from his revised biography "This Is a Call: The Life and Times of Dave Grohl" reprinted Tuesday by Louder Sound, he said, "That album captured a moment in time for the band, and it's definitely an accurate representation of the time ... which was dark."
He went on to say that, despite lore to the contrary, "Nevermind" was a carefully constructed and meticulously rehearsed collection, though "lyrically and conceptually it's not something that I like to revisit too often.
"But maybe what I love the most about that album is the sound of urgency, and the sound of the three of us in a room playing'...," Grohl said. "But it is a hard album for me to listen to from front to back. Because it's so real, and because it's such an accurate representation of the band at the time, it brings back other memories, it kinda makes my skin crawl."