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30 years later, Nirvana should be held responsible for child pornography, exploitation

Nirvana’s ubiquitous “Nevermind” album cover features a naked baby as he floats underwater desperately grasping for money. It is on T-shirts worn by Instagram influencers, puzzles, posters and reissued CDs and records –  like the one Nirvana plans to release this month.

For many, the long-controversial image represents a band synonymous with the 1990s. Many forget that the baby pictured has his own story. His name is Spencer Elden. 

He never asked to be a pop culture icon. And he has nowhere to hide from what he considers the childhood exploitation that is being shared for profit in perpetuity. After 30 years, he is asking for empathy.

Does Spencer have right to protection?

Spencer recently filed a lawsuit asking Nirvana to restore his privacy and dignity. While it may come with uncomfortable implications for a legendary rock album, the law is clear: Spencer has a right to be protected. 

Spencer’s privacy was taken before he could walk, talk or swim. Spencer had no capacity to consent or understand what was happening to him. The parents of the children in the infamous Lil Amber cases, a controversial website that marketed child “modeling,” put their kids at risk, but the production companies held the lion’s share of blame. 

The same should apply here.

For many victims and survivors of complex trauma, coming to terms with the impact of their exploitation can be a gradual, nonlinear, lifelong process. For example, most survivors of childhood sexual abuse do not disclose what happened to them until age 52, according to CHILD USA, a national think tank for child protection.

Not surprisingly, Spencer endures daily psychological turmoil and the same fear of being recognized that other survivors experience.

Although Nirvana’s music changed the world, we cannot ignore the moment of reckoning that Spencer and other survivors deserve.

“Nevermind” includes a disturbing song that describes the abduction and rape of a child from the rapist’s perspective. In Spencer’s case, adults gagged him, submerged him underwater and took close-up pictures of his genitals.

The resulting image prominently accentuated a baby’s genitalia, and then the creators added a menacing fishhook and sexually provocative cash, to sell the image and create worldwide fame for a band that shot to stardom. 

Freedom of expression doesn’t apply

There is a clear violation of Spencer’s privacy, dignity and well-being. The U.S. Supreme Court recognizes that inherently innocent children deserve greater protections than adults.

In recreating the “Nevermind” photo as an adult, Spencer had no understanding of how it would affect him in future years. The notion that Spencer brought recognition on himself is simply victim-blaming. 

Whether the viewer knows his identity is immaterial to Spencer’s painful awareness that it is him on the album cover for the entire world to see on merchandise, digital media and advertisements.

Protecting children

Critics glibly proclaim that since the damage is already done, past wrongs can never be redressed. The unfortunate reality is that Spencer faces the same fate as victims whose images will circulate beyond their death into eternity. What has changed is that kids in the digital age relate to Spencer’s overexposure, embarrassment and humiliation in ways that children from the ’90s could never imagine.

This is why Spencer’s lawsuit requesting redaction of his genitalia is as important now as it would have been 30 years ago. Society should finally recognize that a child’s privacy is not for sale.

Children’s safety online should take priority over profits. Perhaps “Nevermind” can now best be celebrated as an album, and iconic image, that raised awareness and understanding of the vulnerability and exploitation of children on and offline.

All kids deserve protection from the very real harms of worldwide exposure that are often just a click away. 

Margaret E. Mabie is a managing associate at Marsh Law. Robert Y. Lewis is a senior counsel at Marsh Law. 

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