Blog: “Nirvana Baby” lawsuit underscores broader issue of adults robbing children of their privacy rights

Spencer Elden, the man whose nude infanthood photograph was controversially used as Nirvana’s 1991 Nevermind album cover, is now suing the band over the image. This should serve as a wake-up call for us all.

This lawsuit raises fundamental questions surrounding the publication and commercialization of intimate images and information concerning children.

Controversies over album covers depicting naked or sexualized children, regrettably, are nothing new. Other rock bands have published pictures of prepubescent or pubescent girls in sexualized poses over the years. Without any hesitation, it’s clear to me that the publication of these images should have never taken place.

As we speak, most of the debate underway over the so-called “Nirvana Baby” case seems to focus on a range of predicable questions:

• Does the image meet legal definition of “child pornography”?
• Is Elden’s claim of harm genuine?
• Did the band have proper consent to make use of the image?
• Is this is a case of moral panic gone too far?

While these questions may be pertinent to the lawyers and the critics, for children and adolescents they all fail to address the fundamental issue before us: a child’s right to privacy and dignity was violated.

When Elden’s four-month-old naked body was photographed and circulated globally, a group of adults—photographers, band members, record producers and guardians—altered his fate by deciding that his genitalia and personal identity would forever be exposed to the world. In that moment, Elden was effectively stripped of his right to personal agency.

Sadly, these types of decisions have become commonplace in today’s world where many aspects of children’s lives are documented and showcased publicly by adults in their lives.

In 1991, it took the status of an international rock band and a major record label to circulate this image globally. Today, with the ubiquity of social media, every child’s image has the potential to be seen by the masses at the click of a mouse. Since children, especially young children, lack the capacity to provide meaningful or informed consent, parents and guardians have an obligation to recognize and protect their autonomy over their public and digital footprints which accompany them for life.

When parents repeatedly publicize or commercialize content involving their children in digital or public spaces, they often don’t fully appreciate the negative consequences that may manifest further down the road. The internet amplifies and exacerbates this reality like no other medium.

In our role of operating Canada’s tipline for reporting online child sexual abuse and exploitation, we bear witness to the many ways seemingly innocent photos of children that are shared can be repurposed in disturbing and even illegal ways. When this happens, the harm and privacy intrusions that follow often have lifelong consequences.

As this lawsuit unravels, consider the real question: When the adults in the room in 1991 immortalized Elden’s identity as the naked “Nirvana Baby”, did they place their own interests above those of a four-month old?