The iconic cover art of Nirvana’s 1991 album “Nevermind” — an image of a naked baby boy submerged in a pool — was certainly shocking, but was it child pornography? Law360 asked the experts.
A new lawsuit filed by the now-30-year-old man featured in the image says it was. In a complaint Tuesday, Spencer Elden called the famed cover a form of “sexual exploitation” that violated both state and federal child porn laws and that continues to hurt him to the present day.
The image was shocking at the time — Nirvana’s record label tried to force the band to censor part of it with a sticker — but did it cross the line into the realm of child pornography? Experts say that’s a complex question.
Historically, courts have answered that question with a six-part test, asking: whether the focal point is on the child’s genitalia; whether the setting is sexually suggestive; whether the child is depicted in an unnatural pose or in inappropriate attire; the extent to which the child is nude; whether the image suggests coyness or willingness to engage in sexual activity; and whether it is intended or designed to elicit a sexual response in the viewer.
Complicating matters further, the various factors don’t all need to be satisfied for a finding that an image meets the definition of “lascivious,” and other, additional factors can also be considered in the analysis.
In this week’s complaint, Elden’s attorneys tried to target some of those factors. They said the photographer aimed to “trigger a visceral sexual response from the viewer” with the way the photo was posed. They also said the use of the dollar bill in the design evoked prostitution.
“Cobain chose the image depicting Spencer — like a sex worker — grabbing for a dollar bill that is positioned dangling from a fishhook in front of his nude body with his penis explicitly displayed,” Elden wrote, referring to Nirvana’s late frontman, Kurt Cobain.
Though it’s helpful in understanding how a court will eventually decide Elden’s accusations, experts say a six-part test does not lend itself to easy forecasts about the outcome of a case.
“It is, by definition, a case-by-case analysis,” said Mary Graw Leary, a former federal prosecutor and a professor at Catholic University of America’s Columbus School of Law who focuses on the exploitation of children and women.
Later media clippings, though, show that Elden had become conflicted about the use of his image and his continued notoriety. In a 2016 interview with Time Magazine, he said, “I feel like I got part of my human rights revoked.”
For Stacey Steinberg, a professor at the University of Florida’s Levin College of Law, the case raises important questions beyond the issue of outright child pornography, about how photos snapped of minors are treated in a world where they can live on forever on the internet.
“I think this is an interesting case, and I will follow it closely,” said Steinberg, who focuses on child privacy rights. “Should a child be able to have control over his or her digital footprint? While this image was taken long before social media, many of today’s children are growing up with their images shared online.”