Also, any determination of lasciviousness must be based on the depiction taken as a whole, with its overall content and context in mind.Įlden is likely to face an uphill struggle in persuading a court that the cover is deliberately focused on the baby’s genitals and that the creators intended to elicit a sexual response – as the first thing most people probably notice is the underwater background.īut, even if he was successful on the child pornography ground, the difficult question would arise of whether fans who own or have downloaded the album with its cover art have copies of a child sex image and so have committed a crime.
Under US federal law, a key factor in distinguishing between the artistic cover and illegal explicit content is whether the depiction of the minor constitutes a “lascivious exhibition” of their intimate parts – in other words, a depiction designed to excite sexual stimulation in the viewer. It goes so far as to suggest that Cobain “chose” the image depicting Elden “ like a sex worker – grabbing for a dollar bill that is positioned dangling from a fishhook in front of his nude body”. The same picture is, however, interpreted differently in the lawsuit which attempts to weave in the idea that the image was designed to elicit a sexual response from viewers. Originally inspired by Cobain’s fascination with waterbirths, it has been said the cover can be interpreted as a comment on the values society imparts to the youth. Elden now seeks a civil remedy of US$150,000 per defendant for the “lifelong damages” he claims to have suffered. The claim states that the band benefited financially from their participation in his “sexual exploitation”.
Spencer Elden, the underwater baby tempted by a dollar bill on a fishhook, is suing the band and Kurt Cobain’s estate for having “knowingly produced, possessed, and advertised commercial child pornography”. Nirvana’s album Nevermind has reached its 30th anniversary and is under more scrutiny than ever as a result of a lawsuit recently filed by the former cover-star.
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