Column: Was the baby on the cover of Nirvana’s smash album ‘Nevermind’ exploited? Most definitely

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 — with the striking cover image — anywhere music is sold.

The floating baby, Spencer Elden, is now a 30-year-old artist.

Last week, he filed a federal lawsuit in Los Angeles, alleging that the image constitutes child sexual abuse, violates federal child pornography laws and has cast a long, traumatic shadow over his life.

He wants at least $150,000 from each of more than a dozen defendants, which include Nirvana LLC; Kurt Cobain’s estate and his widow, Courtney Love; photographer Kirk Weddle; cover designer Robert Fisher; surviving bandmates Dave Grohl and Krist Novoselic; plus a handful of record companies. (None has yet commented publicly on the lawsuit.)

“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.

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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.”

That’s reasonable. After all, some people get turned on by shoes.

Over the years, Elden’s feelings about the photograph have evolved.

In some interviews early on, he expressed pride at being part of such an important cultural touchstone, and he has also posed (clothed) in photos that reproduce the shot on various anniversaries of the album.

As he neared adulthood, however, he became conflicted.

By his mid-20s, he was angry.

“Recently, I’ve been thinking, ‘What if I wasn’t OK with my freaking penis being shown to everybody?’” he told GQ Australia in 2016. “I didn’t really have a choice.”

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.”

His parents say they did not realize what the shoot was for until the family was driving down Sunset Boulevard and saw a 9-by-9-foot image of their son floating naked on the side of Tower Records , according to an NPR interview with Elden’s father, Rick, in 2008.

At the time, of course, no one could have known that the album would become among the top-selling LPs in the world, generating millions of dollars in profit that continue to roll in.

But now that it has, and now that Spencer Elden feels he was exploited, there must be a way for the grown-ups who benefited so richly from his image to make it right, both with cash and a promise to redact the baby’s penis in future releases.

“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.

When he was a year old, he was sent a platinum record and a teddy bear from Geffen Records, his father said in the NPR interview. That was a sweet gesture, but it doesn’t begin to cover what Spencer Elden is owed.

@AbcarianLAT