Nevermind That Nirvana Child Pornography Lawsuit, Attorneys Say

Elden’s attorney James Marsh, whose practice focuses on victims of sex abuse, insists permission wasn’t given. “Our understanding is there was no release,” he says. “In a culture in which we are trying to upload consent as one of the highest values, an image of a child naked that he didn’t consent to should cause people concern.”

Another entertainment litigator with experience in invasion-of-privacy and right-of-publicity matters tells THR, “Depending on which federal judge this case is assigned to downtown, plaintiff’s counsel is likely going to be in for a very rough ride. Sanctions are a definite possibility.”

That attorney — who is often on the plaintiff’s side in these matters — adds there are a “plethora of defenses” to the suit. He notes, “I think what will be most troubling for any judge will be the amount of time that has elapsed since the photo was published, the fact the kid’s parents did this knowingly (more or less, but they knew the naked baby was being photographed), and the numerous times that the plaintiff himself embraced the photo and sought publicity for himself.”

Entertainment litigator and Lavely & Singer partner Andrew Brettler agrees that publicity will be a key issue: “What I think really damns their case is the fact that this kid sat for all these interviews and re-created the album art.”

For example, in a 2015 essay in The Guardian Elden said his parents agreed to the shoot and said it had opened doors for him: “I don’t think my parents really gave my taking part in this shoot too much thought. They knew who Nirvana were, but weren’t really into the grunge scene. I was four months old and my dad was attending art school at the time, and his friends would often ask for help with their projects. So his friend the photographer Kirk Weddle called him and said, ‘Do you want to make some money today and throw your kid in the pool?’ And he agreed. My parents took me down there, apparently they blew in my face to stimulate my gag reflex, dunked me in, took some pictures, and pulled me out. And that was it. They were paid $200 and went to eat tacos afterwards. No big deal. Weddle had shot a number of babies to find the right image, and they ended up choosing me. I think it’s because of my penis — a lot of the other babies were girls. Also, the composition seemed very natural. I am glad they chose me.”

Marsh doesn’t think Elden’s past comments are relevant to the key issue: whether the photo is child pornography. To a certain extent, he’s correct. If the court determines the image is child pornography, nothing else matters. If the court determines it isn’t, that’s when the other claims will come into play.

“Hindsight is 2020,” says Marsh, “You can cherry-pick all kinds of things he’s said over the years. He’s also said he felt profoundly humiliated and exposed by this image.”

Brettler suspects the suit will be brought to a swift end thanks to California’s anti-SLAPP (strategic lawsuits against public participation) statute, an avenue for defendants to bring an early end to frivolous complaints arising from protected activity like artistic expression, which qualifies as protected speech under the First Amendment. “My initial reaction to reading about the suit yesterday was that it is a SLAPP under California law and should be promptly dismissed,” says Brettler, noting that the statute’s provision regarding fee awards could get expensive for Elden. “If an anti-SLAPP motion is granted, he’d have to pay the legal fees for all the defendants.”

He continues, “I’ve represented actresses whose nude photos were released when they were minors. That’s very different. A naked baby is not necessarily pornographic.”

Marsh disagrees. “I’m not an expert on California law, or California SLAPP law, but for what I understand it only extends to protected speech, and child pornography is not protected speech,” he says. “We vetted this case very carefully over many years before we filed this. We chose to bring this case forward because we have a good-faith belief that this qualifies under the law as child exploitation material.”

So what’s the line between art and child pornography? Both Brettler and Sullivan point to U.S. Supreme Court Justice Potter Stewart’s famous 1964 quote from his concurring opinion in Jacobellis v. Ohio: “I know it when I see it.”

“There is no bright-line rule, says Brettler. “It has to be something created to stimulate prurient interests. There’s nothing in my view that a reasonable person would see as sexual about that image.”

If an image doesn’t depict actual or simulated sexual conduct (which is explicitly defined), in order for an image to be “sexually explicit” under the law it must contain a “lascivious exhibition of the genitals or pubic area.” The factors for determining such a finding include whether the genitals are the focal point of the picture, whether the setting or pose are sexually suggestive, the amount of nudity, whether the image suggests a willingness to engage in sexual activity, and whether it is designed to elicit a sexual response in the viewer.

“The Plaintiff and his attorney attempt to inject sexuality into it by arguing the baby grabbing at the dollar bill on a fishhook is ‘like a sex worker,’ but that is an extreme interpretation in an attempt to support the frivolous allegations in the complaint and ignores the artistic message,” says Sullivan. “I doubt any judge or jury would find this album cover to be pornography.”

Brown Rudnick’s Michael Bowe — who’s currently representing nearly three dozen plaintiffs in a lawsuit against PornHub parent MindGeek alleging “the most powerful online pornography company in the world was built and sustained in material parts on child pornography, rape, and human trafficking” — agrees.

“This seems like an unserious college philosophy argument in a bar,” Bowe says. “Most serious-minded people would — and have for decades, with respect to this image — understood this was not sexually explicit or suggestive. Just like my parents’ home movies of me in the tub as a baby were not. I think one could debate whether it is the best parenting decision to let someone take pictures of your naked baby underwater for a rock album cover. And he may have a fair complaint about not being paid or about his privacy being invaded unfairly then or now. And maybe they should just respect his concerns now out of decency. But those are different issues.”

Bowe adds, “I am always concerned when people hijack a word that has the most serious meaning and dilute it by applying it to far different, less serious, and sometime frivolous things.”

Sullivan agrees the claims minimize the seriousness of child pornography. “It is an insult to true victims of such heinous crimes who have suffered inhuman conditions and degradations,” he says. “This is the type of frivolous case that makes it more difficult for true victims to obtain justice.”

Marsh says it’s “mystifying” that the suit is generating criticism and says he’s heard the “you’re not a real victim” narrative for “far too long” in his line of work.

He also tells THR they didn’t send demand letters to the defendants prior to filing the suit, but notes there has been press coverage over the years that his client “tried to reach out to people and has had the door slammed in his face.”

The upcoming 30th anniversary of the album was a catalyst for the complaint. “We needed to get this done and try to put a stop to the re-issuance prior to the anniversary,” says Marsh, adding that the motivation for choosing this image over another one isn’t being adequately scrutinized.

“Would the album have been as iconic without his penis as it was with it? If it could have, why did they pick the image that displayed it?” Marsh says, pointing to an allegation in the complaint that Cobain wanted to cover the baby’s genitals with a sticker that read “If you’re offended by this, you must be a closet pedophile” if the album cover couldn’t be left uncensored. “We want the sticker on there. That’s what it’s all about. I think Nirvana, given the publicity from this lawsuit, will more than make up for the cost of the sticker.”

This article was originally published by The Hollywood Reporter.

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