Legal experts trash ‘child porn’ claim over Nirvana album cover

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Nirvana sued by 'Nevermind' baby

The man who appeared as a naked baby on the cover of Nirvana’s smash, breakthrough album should have said “Nevermind” to the idea of filing a child-porn lawsuit over its iconic cover, some legal experts said Wednesday.

Lawyer Jamie White, who’s represented thousands of survivors of childhood sexual abuse, called the case brought by Spencer Elden, now 30, “just outrageous on so many levels.”

“I’ve never seen a more offensive, frivolous lawsuit in the history of my career,” said White, whose clients include people victimized by pedophile priests, Boy Scout leaders and notorious ex-USA Gymnastics team doctor Larry Nassar.

“Not only do I not think this lawsuit will hold water, I think the attorneys will be scrutinized for even filing this thing,” he said.

White, whose firm is located in Okemo, Mich., also called the suit “really offensive to the true victims” of child pornography, saying that “the people that traffic in this garbage do it for sexual gratification.”

“The idea that the Nirvana album is for the purpose of gratification sexually is just such a ridiculous outrage,” he said.

“This is a money grab and … I would look for a court to dismiss because it’s frivolous and it really is offensive to what we have all been doing in trying to protect children from the harm they are alleging here,” White said.

In legal papers, Elden, now 30, claims that photo of him as an infant -— underwater in a pool and seemingly swimming after a dollar bill on a fishhook — violates a federal law that lets victims of child pornography collect at least $150,000 from everyone involved in creating the filth.

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His California federal court suit targets 15 defendants, including Universal Music Group, late Nirvana frontman Kirk Cobain — who killed himself in April 1994 — and his widow, Courtney Love, as well as former Nirvana band members Dave Grohl of the Foo Fighters, Krist Novoselic and Chad Channing.

Fordham Law School professor James Cohen said he’d be surprised if the suit survived a defense motion to dismiss it.

The album cover shows Spencer Elden, now 30, underwater in a pool and seemingly swimming after a dollar bill on a fishhook.
DSC Records

“The context doesn’t suggest that it’s pornography,” he said of the photo shot by Kirk Weddle, who’s also among the defendants.

“I think that it’s a frivolous lawsuit and I predict that it will not go anywhere,” he said. “It wouldn’t even get to a jury.”

If the case does manage to go trial, Cohen added, “A jury will see this as a rather pitiful attempt for Spencer to make a buck … and would reject it out of hand unless the judge instructs them as a matter of law that they have to find some damages.”

But lawyer Jeff Herman, whose Manhattan firm recently filed around 1,400 suits under New York’s Child Victims’ Act, said, “In terms of what is being alleged, I think it’s a well-pled complaint and I think it will be a question of fact for the jury as to whether or not the album cover fits the definition of pornography.”

“The fact that there was a choice to put a naked baby exposing its genitals, to me, suggests that there was this prurient reason to do that, to be shocking,” he said.

Herman also said he understood how Elden feels “harmed” by having appeared in his birthday suit on the cover of the iconic 1991 “grunge” album, which reportedly sold more than 30 million copies.

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“One of the difficult things about child porn is that once it’s out there it’s out there,” he said.

“In this case … it’s out there like there was nothing inappropriate about it,” he said.

The experts also differed on Elden’s decision to famously recreate the “Nevermind” cover — while wearing bathing trunks — five years ago, with White calling it “certainly relevant” while also noting that “it’s not super unusual” for abuse survivors to “defend the abuser and then, later on, say, ‘This is really wrong.’”

Herman said, “It may matter to his damages. But in terms of whether it constitutes illicit material the standard isn’t what the victim thinks.”

This is the baby from Nirvana's iconic 'Nevermind' album cover all grown up and re-creating his famous underwater pose.
Spencer Elden re-created his famous underwater pose.
Splash News

And Cohen said of the follow-up photo, “I’m not sure that it makes much difference because I think that there is a high likelihood that a judge is going to bury this.”

Elden’s lawyer James Marsh — who’s represented victims of child pornography for 16 years and currently has 26 such cases — slammed criticisms the suit was frivolous. 

“We are dealing with real people, a real album, a real picture and a real cause of action, so the notion that this is frivolous … is sort of laughable because frivolous lawsuits are [cases where] you’ve got a hangnail or something,” Marsh told The Post.

“This is something that happened without his consent long before he was in a position of giving consent. This is also an album that was very controversial from the very first day,” Marsh said.

He attributed the suit’s backlash to “idol worship when it comes to famous people, bands and places.”

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Marsh argued against claims that the suit was offensive to victims child pornography, saying that several of his own clients “have contacted us to say they feel for what Elden is going through and they fully support him in these efforts.”

As to accusations that the suit was a money grab, Marsh responded: “We are requesting the minimum statutory damages of the statute… we are entitled to $150,000 per defendant and Congress set that number. 

“That is what Congress feels is the minimum amount of harm caused by defendants who engaged in this behavior.”

“The reality is a court will decide whether or not this is child pornography,” Marsh added. “A jury will be called to decide whether or not this qualifies as child exploitation and those are factual issues.”



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