In the photo, the baby floats below the surface of the aquamarine water, posed like a skydiver, with outstretched arms. The 4-month-old appears to be reaching for a $1 bill baited on a fishhook. His tiny penis is visible, dangling in the water.
Featured on the cover of Nirvana’s second album, “Nevermind,” it is one of the more iconic images in rock ’n’ roll history. The album, containing the monster hit “Smells Like Teen Spirit,” has sold at least 30 million copies and is still available anywhere music is sold.
“The money is peanuts compared to what they have made and continue to make on this,” Elden’s attorney, Robert Lewis, said by phone Friday morning.
More important, said Lewis, a former federal prosecutor whose law firm has handled child pornography cases for decades, Elden wants his genitals obscured in any future releases of the image, including a rumored reissuing of the album in September to coincide with its 30th anniversary.
At first blush, this lawsuit seems far-fetched. How is the baby’s penis offensive? What about artistic license? Why wait 30 years to sue? And why not sue the parents, who, after all, offered up their baby?
On reflection, however, it raises important questions about consent and the exploitation of children and babies in any sort of artistic venture, particularly commercial art. While many people interpret the photo as a critique of capitalism — and I am among them — it is hardly the place of strangers to tell Elden how he should feel.
Although most adult pornography is protected by the 1st Amendment, the protections do not apply to child pornography, which is usually judged using six factors called the Dost test, criteria articulated by a California federal court in 1986:
Is the focal point of the image the child’s genitalia?
Is the setting sexually suggestive?
Is the child depicted in an unnatural pose or in unnatural attire?
Is the child clothed or nude?
Does the image depict “sexual coyness or a willingness to engage in sexual activity”?
And is the image intended to elicit a sexual response in the viewer?
Lewis says the floating baby photo meets all six criteria; he believes the water is “suggestive of sexual activity,” that “throwing a 4-month-old child into the water is unnatural,” that the dangling dollar bill “invokes what happens in strip clubs” and that based on comments made by Cobain, the defendants “knew there were pedophiles out there who would find this sexually provocative.”
As his lawyer put it, “In his 20s, a number of things became clear to him, and he said: ‘Enough of this. It’s harmful to me.’ He has done a lot of trauma work over the years and has come to realize that his image, the pornographic nature of it, has seriously impacted his life in ways he didn’t understand as a young person.”
This makes perfect sense.
Lewis said many of the clients he has represented, and who were abused as children, are in their 30s, 40s and 50s. He added, “Spencer is doing this at an age that is on the young side.”
I would love to know what Elden’s parents were thinking when they accepted $200 from the photographer, who was a friend of his father’s, in exchange for allowing their son to be photographed. As for why they are not named as defendants, Lewis said, “I suppose we might have, but they are not the ones benefiting from it.”
“You say it’s already out there, so what’s the value to that?” asked Lewis. “Well, you’re right, but it would help Spencer to know there is a stop to it.”
If the case ever makes it to trial, a jury will decide whether Elden has been legally wronged. I’m not sure I would classify the image as child pornography, because it seems more of a cultural critique than something meant to titillate, but I certainly understand why Elden feels exploited, angry and ashamed.