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6 September 2021

Who owns the image rights of a child?

Spencer Elden, the baby photographed on Nirvana’s iconic “Nevermind” cover, is suing the band. His lawsuit raises questions we can’t ignore.

By Megan Nolan

The question of whether a child should be considered an autonomous individual is a relatively new one. It was only in the 20th century that the dominant idea of children as the belongings of their parents was disrupted. (I am tempted to say this has dissolved completely, but in some cultures, and many private hearts, children retain this status, explicitly or otherwise.)

Children’s rights were established in law in 1923; psychoanalysis helped to popularise the notion that the interior life of a child was anything but irrelevant; and the concept of the teenager took root, loosening the previously rigid and sudden boundaries between brainless obedient childhood and sentient wilful adulthood. This shift happened to take place alongside the advent of popular photography. Given that we are still negotiating constantly who really “owns” a child, it stands to reason we are also anxious about who might “own” the image of a child too.

Spencer Elden knows more than most about the existential difficulties of these questions. He was the naked underwater baby pictured on the cover of Nirvana’s seminal album 1991 Nevermind, grasping for a dollar bill caught on a fishhook. It’s one of the most iconic record covers ever, but neither Elden nor his parents saw much material reward for this. The fee paid by the photographer Kirk Weddle, a family friend, was just $200, and it is alleged that no release form was signed.

Now, Elden is 30 years old and suing Nirvana. It is easy to see why an adolescent, then adult, would find it difficult to be “famous for nothing”, as Elden once put it to Time in 2016. Cultural significance and fame of Nirvana’s scale would overshadow even an unusually gifted, established adult. Nobody wants to be defined by a relationship to someone more successful than themselves. It was bad enough for Courtney Love, let alone an infant who had no choice in making or maintaining the association.  

[See also: Abba are back – with the old magic intact]

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Elden’s lawsuit alleges sexual exploitation, arguing that the nude image constitutes child pornography. This is a far more difficult proposition. He is naked in the image, yes, his penis clearly visible, and while I can fully understand his anger and discomfort at this fact, is there any way to read the image as pornographic? There is nothing sexualised about his presentation, unless you are to consider nudity itself – including that of an infant – inherently sexual. Elden’s lawyer spuriously bulks up the claim by saying that the inclusion of the dollar bill makes the infant Elden appear “like a sex worker”. I doubt that even one person has ever seen this image and come away with that idea. (I’ve always assumed, like many people, that it was a vague comment on the corrupting force of greed and wealth.)

How we categorise undressed children has become an increasingly thorny area of inquiry after society’s awareness, and fear, of paedophilia sharply increased in the 1970s and 1980s. This has only intensified in the years since the internet made child pornography terrifyingly accessible. The photographer Jock Sturges, whose work often focuses on nude adolescents in naturist areas, was investigated by the FBI. The work of Sturges and Sally Mann – who often photographed her own children naked, sometimes in provocative poses (provocative in the original sense of the word, rather than the purely sexual: images of children with garrotes and appearing to smoke cigarettes) – have attracted waves of disgust. But these photos are not merely intended to titillate or shock; they are art. Yes, they can present the bodies of naked children as beautiful, elegant, even something to be admired. But there is a difference between beauty and sexuality.  

Recently, I visited an exhibition at the V&A about Lewis Carroll’s Alice In Wonderland with my boyfriend, and it spurred a conversation about these very issues. I wondered whether it would reference the existence of something untoward in Carroll’s relationship to the “real Alice”, and to young girls in general. It didn’t, as far as I could see – except a passing reference in one exhibit blurb that contextualised a friendship between an adult man and a child as relatively normal for the period, eccentric as it may seem now. I commented that to seek out particular female children to photograph nude, as Carroll did, has the undeniable association of sexual impropriety, regardless of intent. We both agreed that there was nothing inherently wrong with wishing to draw or paint or photograph the nude bodies of children, but that the context of an adult man seeking out situations in which he might be alone with naked children was impossible to view neutrally.  

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And yet, the idea of all infant and prepubescent nudity being sexualised and censored seems deeply and obviously wrong. Is it possible that someone will see a naked child, or the image of one, and find it arousing? Sadly, it is. But are we really comfortable with the idea of arranging the world to accord with the impulses of a very small percentage of people with malformed sexualities? It would be very dark indeed for us to organise our experiences of childhood and our bodies around the fear of that worst-case scenario. 

Elden may be wrong, then, to make accusations of sexual exploitation simply because he was naked in that image. But this is not to dismiss his story – either in terms of individual suffering or the precedent this legal case could set. Over the past two decades, children have been photographed, filmed, branded and monetised more easily than ever before, not by evil paedophiles but by their parents. It is only a matter of time before the disenfranchised strike back from the position of adulthood.

[See also: I’ve shed my teenage atheism and can see the appeal of Catholicism – but not of the Catholic Church]