We should start by solemnly observing that Nirvana’s landmark “Nevermind” album turns 30 later this month, which means we’re all three decades older than we were when it came out in 1991, and that we’re all going to die someday.
The album’s famous cover is a photograph of a naked baby boy underwater, swimming toward a dollar bill hooked to a fishing line. The photographer, a friend of the child’s dad, reportedly paid him $200 to shoot his son in a swimming pool for an afternoon.
That infant grew up to be a 30-year-old artist named Spencer Elden, who is now suing the surviving members of Nirvana, the estate of late bandleader Kurt Cobain and several others associated with “Nevermind,” claiming he was the victim of child pornography.
Needless to say, this has caused a stir. “Nevermind” unexpectedly became one of the most popular and beloved rock albums ever. Elden has been seen naked as an infant by the 30 million people who bought it — and surely a great many more, as the image became an iconic artifact of 1990s culture.
The lawsuit’s implications are fascinating. If Elden wins, is every person who bought a copy of “Nevermind” guilty of possessing child pornography? Are long-defunct CD stores liable for distributing it? Good thing for a lot of us, most lawyers who have been interviewed about the lawsuit agree it’s a longshot.
Elden is suing in California, where courts have established standards an image of a child must meet to qualify as pornographic. Among them: the child’s genitalia must be visible and the image’s focal point; the setting and activity must be unnatural and sexually suggestive; and the image must be intended to elicit a sexual response.
He claims the “Nevermind” cover meets these criteria, but the argument relies on a narrow and highly subjective interpretation of the image. Elden’s penis is obviously visible, and he claims the photo is sexually provocative because a naked baby reaching for a dollar bill amounts to an endorsement of prostitution or child sex trafficking.
When the album came out, almost everyone understood that the focal point was the dollar bill, and that the cover was a statement about the grim pervasiveness of capitalism, not a perverse attempt to sexualize a baby. But do evolving attitudes toward abuse and trauma change how we see it today?
It’s a provocative question, and Elden is not wrong to ask it, even if he has sometimes embraced his identity as the “Nevermind” baby — once recreating the photo as an adult, in a swimsuit — and even if the lawsuit is ultimately without merit.
Real trauma often takes decades to reveal itself, and not many people understand what it’s like to have their unclothed infant body on display for the whole world, to remain frozen naked in time while others profit from it. Whether or not that constitutes pornography, it’s still pretty messed up.
However extraordinary, Elden’s experience speaks to timely concerns. His baby photo went the ‘90s equivalent of viral, and he had no control over its circulation or context. Anyone who’s been memed or accidentally achieved virality will tell you how terrifying it can be. Imagine that as your whole life.
Similarly, a generation of children have now grown up with their every move and milestone documented on their parents’ social media accounts. That’s obviously not the same thing as child pornography, but there’s still something insidious about kids becoming known quantities to tech companies, without consenting to it, from the moment their parents post an ultrasound image on Facebook.
Even for parents who are diligent about privacy settings, it’s hard to know exactly who sees a shared image, and even if the audience is benign, every post contributes data to an exploitable profile that will follow kids around for the rest of their lives and be used for who knows what. Facial recognition? Hyper-invasive marketing? Over-aggressive law enforcement? All of the above and worse?
Maybe future generations will consider these things abusive, and an updated version of the “Nevermind” cover might show the dollar chasing the baby, not the other way around.