Nirvana is one of the most iconic groups in the history of world music. The cover of the band Nevermind’s second album, released in 1991 and featuring legendary songs such as “Smells Like Teen Spirit” and “Come As You Are”, is as famous as its contents.
In the cover photo of the album, which has sold 30 million copies worldwide according to official figures, a chubby little boy is seen swimming naked in a deep blue pool towards a $ 1 bill. $ stuck to the end of a hook. Also, this photo is not just an album cover; A square that has gained commercial value by being printed on millions of products around the world, from posters to t-shirts and housewares.
This place has been in court recently. Baby Spencer Elden pictured, stating that the use of her nude photo on the Nirvana album cover should be considered sexual harassment, surviving Nirvana members Dave Grohl and Krist Novoselic, Kurt’s ex-wife Cobain Courtney Love, the executives of Cobain’s legacy and those who released or distributed the album over the past 30 years, the companies sued. A total of 15 people are named as defendants in the motion for the lawsuit filed in California.
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IT WAS FOUR MONTHS AGAIN
Spencer Elden, who is a model today, was just 4 months old when this photo was taken. The person who took the photo was photographer Kirk Weddle. In his petition, Elden pointed out that his parents had not signed a waiver of the use of the photo on the album cover.
The petition also pointed out that the photo should be considered child pornography and said: “The photos show private parts of Spencer’s body, revealing his genitals in a sensual way. This situation has continued from Spencer’s childhood to the present day.
DETAYI OF BANK NOTES
Non-sexualized photos of children are generally not considered porn under US law. However, Elden’s attorney, Robert Y. Lewis, claimed that the detail of the banknote on the end of the fishing rod added to the album cover photo changed the situation.
Lewis said the detail made the boy “like a sex worker.” The petition also states that Nirvana promised to seal Elden’s genitals with a tag, but that promise was not kept.
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Elden said that “his real identity and legal name are forever linked to the commercial sexual exploitation he suffered as a baby.”
Elden, who adds to the text of the petition that he suffered significant damage, which he described as “extreme and permanent emotional distress”, “disturbances in the process of development and education” and “medical treatment and psychological, “because of the photograph, and which he will experience in the future, said each of the 15 people he complained about had at least one claimed $ 150,000 in damages
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RETAXED THE PHOTO THREE TIMES
Spencer Elden, who has a large ‘Nevermind’ tattoo on his chest, recreated the same frame, this time posing for well-known photographers on the 10th, 20th and 25th anniversaries of the album’s release. However, in these reenactments, she also wore a swimsuit. However, in an interview with TIME magazine in 2016, Elden said his fame started to bother him a bit as he got older.
Elden said: “I woke up one morning as part of this huge project. It’s a pretty tough situation. You feel like you got famous by doing nothing.”
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“It’s impossible to know how much money is at stake and not to be upset. Sometimes when I go to a baseball game I’m like ‘Wow, everyone in this stadium saw my little baby penis. right now.’ I feel like one of my human rights has been taken away.
Elden, who made much warmer comments in an interview he gave The Guardian 6 years ago, said: “This blanket has always been a positive thing and opened doors for me. years now and I am involved in art. Thanks to this story, I had the opportunity to work with Shepard Fairey for 5 years. “I did and it was an amazing experience. When he heard that I was a baby Nirvana, he thought it was really cool. “
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$ 200, A PLATINUM ALBUM, A TEDRY BEAR
Spencer’s father Rick Elden also told NPR in 2008 that photographer Weddle had a family friend and offered him $ 200 for the photo. “We were at a big pool party, no one had a clue what was going on,” said Rick Elden.
The family even forgot that the photo was taken, until three months later they saw the giant poster on the wall of a music store in Los Angeles. Two months later, “Geffen Records sent one-year-old Spencer Elden a platinum album and a teddy bear.”
Photographer Weddle also told The Guardian in 2019 that he was still in contact with Elden and was “confused about the photo”.
Weddle said: “Everyone thinks he’s the only one making money with this job. I think he deserves something too. But the record companies are still making money.”
HOW DO THE LAWS WORK IN TURKEY?
As the case sparked debate around the world, we discussed the matter with lawyer Bilal Çelik. Çelik not only assessed Elden’s charges under US law, but also explained some details all parents should know about how the Turkish penal code would work in case a similar situation arises in our country.
Are non-sexual photos of babies considered child pornography under US law?
In the United States, the concept of obscenity is discussed under the title of “provocation of sexual interest” in high court decisions, and behavior contrary to moral standards in the eyes of society is described as inappropriate. It would not be wrong to say that obscenity is the subtitle of impropriety in American law. When it comes to babies, images that do not contain sexual content can only be considered “inappropriate” in certain situations.
Is it a crime to use nude pictures and materials used in early childhood in this way?
In the United States, a precise definition of obscenity has not been made. In the decisions of the high courts, it is decided after examining concrete events whether it is a “sexual interest” linked to obscenity. In the case of arousal of sexual interest in terms of a concrete incident, in the United States, if images of the child giving the impression of sexual acts are created, a prison sentence and heavy fines are inflicted.
In the Turkish Penal Code, the crime of obscenity is treated under the title of crimes against public morals. Obscenity, as a word, means openness to sexuality, which is contrary to good manners. Article 226 of our Turkish penal code contains the provisions of the crime which we can define as child pornography. Although the title of the article is not child pornography, actions that may qualify as child pornography in terms of content are penalized under TCK 226/3.
Elden claims that his family did not sign any documents authorizing the use of the aforementioned photo in the album. How does this change the course of the case?
Although Elden claims his family did not sign a document certifying the photo album, he does confirm that they received a small fee. The absence of a written contract between the parties poses a problem of delay. US courts are specifically looking into the case of Elden, who said the cover photo would not be used in the future, or that a certain royalty would have to be paid even if used, and decides based on the nature of the event.
What would happen if a similar situation happened in Turkey? How do you think this business will develop? What are your predictions?
The limits of the crime of obscenity in our law have already been discussed. The general opinion is that it is not possible to give artistic value to a baby postcard showing the genitals. Everyone’s genitals are absolutely and absolutely private, so sharing them is not considered appropriate in terms of ethical values.
In our country, this situation usually occurs with regard to children who are circumcised at a young age. The child’s genitals are shared by both families and third parties, and the activity created here goes beyond interference with the child’s living spaces.
For example, can a baby used in a diaper ad sue years later, even if it is a signed contract?
The contract between the parties is tied to a certain period of time and if the child has the capacity to act during this period, the child himself should be taken as the recipient in the contract, and no longer his family. In this respect, a problem may arise in terms of the continuity of the contract.