Nirvana's 1991 album cover featuring a naked baby in a pool is now at the center of a debate about the line between art and child pornography. While some seasoned litigators tell THR there's nothing 'a reasonable person would see as sexual about that image,' the lawyer for the man in the photo insists it's child exploitation material.
Bryan Sullivan, an entertainment litigation partner at Early Sullivan, says the suit is “ridiculous,” and that even if there wasn’t a written agreement, which he doubts, Elden’s claims are weak. “I think it is highly unlikely that a record company would use a photograph for an album cover without verifying the existence of a release signed by the parents,” he says. “But, if is there is no release, it does not mean he has a claim for child pornography.
Elden’s attorney James Marsh, whose practice focuses on victims of sex abuse, insists permission wasn’t given. “Our understanding is there was no release,” he says. “In a culture in which we are trying to uphold consent as one of the highest values, an image of a child naked that he didn’t consent to should cause people concern.”
Another entertainment litigator with experience in invasion-of-privacy and right-of-publicity matters tells, “Depending on which federal judge this case is assigned to downtown, plaintiff’s counsel is likely going to be in for a very rough ride. Sanctions are a definite possibility.” That attorney — who is often on the plaintiff’s side in these matters — adds there are a “plethora of defenses” to the suit. He notes, “I think what will be most troubling for any judge will be the amount of time that has elapsed since the photo was published, the fact the kid’s parents did this knowingly , and the numerous times that the plaintiff himself embraced the photo and sought publicity for himself.
Entertainment litigator and Lavely & Singer partner Andrew Brettler agrees that publicity will be a key issue: “What I think really damns their case is the fact that this kid sat for all these interviews and re-created the album art.”
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