Spencer Elden, the man who was photographed as a baby on the album cover for Nirvana’s Nevermind, is suing the band alleging sexual exploitation.
The cover depicts Elden as a four-month-old in a swimming pool, grasping for a dollar bill that’s being dangled in front of him on a fishing line.
Now aged 30, Elden says his parents never signed a release authorising the use of his image on the album.
He also alleges the nude image constitutes child pornography.
“The images exposed Spencer’s intimate body part and lasciviously displayed Spencer’s genitals from the time he was an infant to the present day,” apparently according to the legal papers filed in California claim.
I have asked myself what the legal position would be if the case was brought in the UK and, in particular, before the English High Court?
There are strict time limits for bringing claims and this case, on the face of it, is already out-of-time and could be dismissed for that reason alone. But looking at the merits Elden, or anyone else complaining about a photographs of themselves which they consider indecent, has to prove that they have suffered a wrong known as a tort.
There is a potential argument that to publish a photograph of a baby with genitalia exposed is likely to cause him/her later in life at the very least a degree of embarrassment and, at worse, distress. That must surely be foreseeable, so to use and publish such a photograph is a deliberate act with that risk in mind or it ought to have been.
The fact that parents consented to the use of the photograph is probably neither here nor there. They are not the subject, the child is. Although an interesting question arises if they did consent, was it in their son’s best interest?
Whether Elden or any other victim in such a case can prove they have suffered psychiatric harm after all this time may be a formidable obstacle, but it is clearly understandable how such an image could potentially cause psychological injury.
The case serves as a warning to those who take intimate images of themselves and others and share them without consent.
