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Comment by hn_throwaway_99 | Hacker News Reader

> He also alleges the nude image constitutes child pornography... However, Elden's lawyer, Robert Y. Lewis, argues that the inclusion of the dollar bill (which was superimposed after the photograph was taken) makes the minor seem "like a sex worker".

I wish the courts were ok with a response of "Are you fucking kidding me, or are you just batshit insane?" Even remotely arguing that this is somehow like child pornography is a grave disservice to all the actual victims of child porn. I sometimes wonder what it's like to go through life with absolutely no shame.

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> I wish the courts were ok with a response of

That exists in the concept of "frivolous litigation" https://en.wikipedia.org/wiki/Frivolous_litigation This has been used in response to some "sovereign citizen" cases (https://en.wikipedia.org/wiki/Sovereign_citizen_movement#Leg...), and it can result in penalties like fines.

There's also "vexatious litigation", for when you're effectively trying to use the court system to harass someone.

I think there are also opportunities to have a case dismissed before going into the costly parts of a trial like discovery. The judge can dismiss it just based on the merits of the suit, where they just assume all the alleged facts will turn out to be true.

(I am so not a lawyer, would love if a lawyer could correct me)

My understanding is that the bar for this is incredibly high, especially vexatious litigation.

> I wish the courts were ok with a response of "Are you fucking kidding me, or are you just batshit insane?"

It didn’t involve the courts (at that stage), but Arkell versus Pressdram comes close to this. If you haven’t come across it before it’s a short and sweet read.

https://lettersofnote.com/2013/08/07/arkell-v-pressdram/

If he wanted to sue, he really should have just gone for the consent angle and not the child porn one. Who exactly would agree that it's pornographic or exploitative? I doubt the vast majority of reasonable people would see the body of an infant in its natural form as anything but innocent on its own, but what do I know. They should have to demonstrate that the dollar bill makes people see the art as depicting child sex work; if this is requested somehow by the defendants, the glove won't fit. This may be a missing detail, but he should have just asked the record company for some money before escalating it. If he did that and they refused, I'm sure that would have been a part of the news story.

The logical end to the argument is that children should never appear in any kind of commercial media because they can't consent, which... come on man. Worst of all, though I'm no lawyer, it seems like there's definitely a non-zero chance he'll get counter-sued by each defendant when his own lawsuit falls apart.

> The logical end to the argument is that children should never appear in any kind of commercial media because they can't consent

That's not so unreasonable, considering how child stardom seems to mess with kids. Maybe better motion capture+deep fake tech will let professional actors appear as kids in media. Abolishing child labor may have seemed as ridiculous a few hundred years ago as this does today.

No thank you. Children should not be prohibited from acting any more than they should be prohibited from working at Chik-fil-a. How is an adult actor supposed to play a toddler? What are you talking about?

Child labour is illegal

Is this universally true? In the US it appears that it just means there's more restrictions to what types of jobs you can/can't do and the hours you're allowed to work, but AFAIK it's not actually illegal to work as a child.

https://www.dol.gov/agencies/whd/YouthRules/young-workers/no...

Define child. Define labour.

In my justification 14 years can legally hold some jobs.

Are girl scouts going door to door and selling cookies performing labour?

Children unloading and loading the dishwasher at home?

Equating any appearance of children for artistic or commercial purposes to child stardom isn't particularly reasonable. Having known my share of child actors (one in a minor hit series and was in several movies, another in a full season of a show that never took off, and one who was in lots of music videos), I don't believe there is anything inherently bad for a child being depicted in media except stardom, which is arguably negative consequences for many adults.

Elden isn't a star of anything. His infant likeness appears on an album in the 90's and 99.99999% of people don't know who the hell he is. His argument is that the mere appearance of his naked infant body with a superimposed dollar bill is child exploitation of sexual nature. In spite of his current stance, he's taken photos in his adulthood that resemble the album art in question (albeit with swim trunks on), the argument seems disingenuous and out of left field, and he could never claim to have been damaged by some sort of stardom because nobody identified him until he literally outed himself as the baby on that cover.

It's normal for a lawsuit to throw every possible thing that could stick in and hope that one of them survives - consent is also part of this lawsuit

At the same time he never consented to a nude image of himself being plastered on one of the most popular albums ever made. Even if it is a cash grab I think he's got a point.

His parents consented for him. If he wants to sue anyone, he can try going after them. I think he'll get about the same outcome as this lawsuit, though.

I think that the idea that parents can post nude pictures of you without your consent is bullshit, which was a subtext of my op.

Well, if you have kids, especially newborns, you do take and send a whole lot of pictures. That alone suggests Apple CSAM thing will have a busy time trying to figure out which is CP and which is just a parent sharing their own kid pictures.

Naturally, it does not help that we now effectively have no privacy.

You're probably getting downvoted because Apple CSAM does not look at a photo in isolation and "decide" whether it crosses the line into child pornography or not. It's comparing hashes to a child porn database as I understand it.

The reason you're getting down voted, I would guess, is that that is not the way CSAM scanning works.

Apple have a list of photos they know are CSAM, or rather hashes of them, and the look for those and only those on your device.

They also introduced another thing that scans your kid's incoming and outgoing messages for what look like dodgy photos - that does look at general photo content (rather than compare to a list) which has been the source of a lot of the confusion.

(FWIW I still think the CSAM scanning is an incredibly bad idea and horribly slippery slope to start sliding on.)

I don't mind. I do find the reaction interesting though.

In a practical sense, they could have called it anything and since they announced it in the same breath, my mental map keeps it under the same umbrella. It is not on me that Apple communicates poorly.

But lets get past that. The 'dodgy photos' functionality ( because that was indeed what I was referring to vs hash db ) is where it is going to get tricky. I am sure there will be parents, who will absolutely love it. Just as I am sure that there will be ones who think this will not end well.

> Apple have a list of photos they know are CSAM, or rather hashes of them

Technically, that government agencies claim are CSAM and the "hash" is highly vulnerable to preimage attacks: I can take random unrelated photos and make them match other hashes, https://github.com/AsuharietYgvar/AppleNeuralHash2ONNX/issue...

This means people can take child porn images and modify them so they match targeted innocent images, and take innocent images and modify them so they match child porn.

That is a whole other ball of wax. Age of consent is a thing. As a parent I wouldn’t choose to let my child be part of that sort of photo. I also don’t think his parents had any malice in putting Spencer in that photo. Until recently he seemed completely ok with drawing attention to the photo by recreating it multiple times and giving interviews.

Let’s not pretend that he would be suing Nirvana if that album sold 5000 copies either.

That's what makes this so highly probable that it is just a vulgar money grab. The image was recreated when he was 10, and again in 2016 (!).

>Elden says his parents never signed a release authorising the use of his image on the album.

If that's true, then why isn't he pursuing that as an argument rather than claiming it's child porn?

He can pursue multiple issues in a single lawsuit, it's not weird for some but not all of the claims in a case to be dismissed

>> His parents consented for him.

According to the article, there was informal consent but no signed release. I'm was pretty surprised to hear that -- isn't obtaining releases pretty standard for large corporations?

I think things like that were handled quite a bit more loosely back then. If memory serves, the cover of one of the Deftones albums (the one with the girl in the bathing suit I believe?) came from a random shot taken at a party and the subject didn't even know about it until the album was released.

Same situation Matchbox 20's Yourself or Someone Like You, one of the most popular albums of the 90s. The guy on the cover apparently never consented to his photo being used and went after them years later.

He needs to sue his parents for getting such a shit deal for use of the photo, in the first place. I'll bet if, instead, they'd negotiated a penny for every copy of the album sold, he would be overjoyed that 'everyone in the world' had seen his chipolata.

Is 300k worth that much to you?

I would love to business with the record exec who decided it had to be THAT baby and agreed to pay royalties for such a generic looking baby.

The consent was given by his legal parent. So he should sue them not Nirvana.

Perhaps he should. Nirvana has more money though and one must operate within the incentive structure of the US legal system.

I think I understand the motivation. Sad state of affairs. We are on our way to total loss of trust in societal institutions, and trying to take full advantage of the incentive structure, without any other considerations. In other words, we are getting to the "fuck it!" phase of the process.

Don't know if it is true or not, or how affects claim ... but he claims

>Elden says his parents never signed a release authorising the use of his image on the album.

A written signed document is not the only way to make a legal agreement, it's just the most easily referenced and proven one. The parents consented to letting a professional photographer take photos of their child to use in commercial work, and nobody appears to dispute that.

What would he sue them for?

money?

Hah. Yeah.

Sorry I meant, what would be the legal basis for the suit?

The same argument: He didn't consent to them allowing Nirvana to use the photo.

Nirvana should be covered by his parents giving their consent, since they was his legal guardian. If he doesn't think that consent should have been given he needs to go after the people who gave it. But I don't think that case would go very far either.

Given that it was legal content and his parents consented, why is it any different from "stage mothers" and others consenting to (and indeed pushing) their children into any number of ads, photo shoots, TV, film, etc.?

Otherwise any adult who felt embarrassment over their appearance in media as a minor could sue and parental consent to do those activities has no meaning.

ADDED: And if your response is that "But he was nude" then your beef is with the law that didn't make this illegal. There are of course borderline cases. See Brooke Shields in "Pretty Baby" for example which caused quite a bit of controversy at the time. (And, indeed, as I wrote elsewhere, I'm pretty sure no major record label would go near this cover with a 100 foot pole today not because it would likely be illegal but because it would be a lightning rod.)

>Elden says his parents never signed a release authorising the use of his image on the album.

But his parents were apparently paid.

That doesn't mean there was consent and model release paperwork.

The record company should (only slightly ironically) keep records.

If they exist this case is going nowhere. If they don't - that might get interesting.

One would think there'd be some kind of implied consent.

It's hard to imagine a situation where a record company ends up with naked pictures of someones kid, the parent gets paid, and the parent is genuinely not ok with the pics appearing on an album cover.

I agree it's more interesting if there's no consent form, but I still would hope the court would side with the record company.

I wonder if that payment serves as some sort of understanding/contract.

The money was given for some reason. What reason did the parents think?

Accepting payment is usually understood to indicate acceptance of the terms of a contract. A contract generally requires: offer, acceptance, a clear intention to interact (create a legal relationship), and consideration (money or goods/services). One very interesting example of the significance of accepting payment is the lease for the Guantanamo Bay naval facility.[1]

[1] https://www.reuters.com/article/idUSN17200921

Without an explicit contract I think it would be hard to argue they consented to commercial use of the photo, even if they accepted a payment at the time.

What else would they have thought they were getting paid for? A picture was taken, and they got paid; the only logical reason for them to be paid would be that there was some commercial value to the photo.

Does it really matter? The evidentiary standard is "preponderance of the evidence" so it's pretty much up to the defendant to prove that they had consent as long as the plaintiff can prove it was him on the cover. That's why some states even require the release to be in writing rather than a verbal agreement.

Well, I can almost guarantee that the first question that the defendant's counsel will ask in discovery is whether payment was accepted in connection with the photoshoot. The second question will be what the parent thought the payment was for.

A written agreement definitely helps to clarify the matter, but is neither necessary nor sufficient to guarantee a resolution.

Not a lawyer but I sat jury duty on a contract dispute.

A verbal agreement absolutely can be an enforceable contract. The crux is whether there was a meeting of the minds. Of course, without documentation this is hard to prove, so you find people arguing it either direction in legal disputes.

He can say whatever he wants, but that would seem extremely unlikely.

Major record companies have legal departments. They're not going to greenlight an album cover without rights to the images. Anyone who works in publishing knows how strictly this stuff is treated at a major label.

Probably worth it to bet they lost the paperwork and get a settlement.

There is zero chance that his parents did not consent. It's not like someone just stole their baby for a few hours.

> Given that it was legal content and his parents consented, why is it any different from "stage mothers" and others consenting to (and indeed pushing) their children into any number of ads, photo shoots, TV, film, etc.?

The nudity and the scale.

The parent comment has addressed the nudity, but the scale really doesn't make it different legally.

> the scale.

I don't think anyone expected this album to be a commercial success, much less one of the most iconic rock albums in history.

Is it really an image of "himself" though? Being a baby is more like a larval form, there isn't really a connection for an audience to make between a photo of a newborn and a photo of an adult. What I'm trying to get at is usually when you say something like "nude image of himself" we are used to thinking that the image is an identifying one. But a baby picture isn't identifying in the same way, even to yourself, until some one informs you of the connection. It feels like a different circumstance, you know?

If they didn't have a signed release then they're basically using this without permission which is a civil violation.

Courts will respond that way, minus the profanity. Usually it’s an immediate approval of a motion to dismiss with prejudice which means final decision and don’t dare even argue about it.

It wasn't child porn when it was created, but times change. I have noticed that the BBC has started censoring the image (QI) whereas British productions in the past have not (TheBoatThatRocked). Jurisprudence changes. Since Nevermind was published, even nudity is no longer a requirement for child porn in the US. While I don't agree, I don't think the question is the total slam dunk it was decades ago.

Yes; I'm quite confident that this would never be an album cover today. But you can't generally sue of the basis of some past activity that was legal at the time even if it's not today.

But it is being republished daily today. When material is deemed illegal, new copies cannot be created/sold today on the basis that they were legal yesterday.

There would probably be a pretty high bar to get this declared illegal as opposed to sufficiently adjacent as to be controversial on something like an album cover. It pretty clearly does not meet the DOJ definition although other countries, perhaps including the UK, may have stricter/different standards. (And it was and would be obviously illegal to distribute in some countries.)

https://www.justice.gov/criminal-ceos/child-pornography

ADDED: And, no, I would not be putting this album cover in my carry-on to get on a plane. I don't really expect a random TSA agent to be up on legal details of what photography is OK and what isn't.

Don't worry, just hit the next album button (but hope that it doesn't random over to Virgin Killer by the Scorpions).

Yeah. Strip away the context of it being an album cover that's been out for a long time and I wouldn't like to be the person trying to argue with law enforcement or a judge why that photo/artwork is perfectly OK.

It still isn't child porn. There is nothing sexual or obscene about this picture and the purpose isn't so, either. There are many, many works of arts, including religious ones, in which infants are depicted in the same way.

The term is being used for PR and sensationalistic purposes in relation to a civil lawsuit.

Eh I mean. There is a naked photo of this person as an infant, that they inherently didn't consent to, being circulated all over the world + internet.

This album was released when I was in HS and a classmate was asked by a teacher to turn her t-shirt with the album cover inside-out. She asked why and the teacher said it could be CP. She turned the shirt inside-out. I felt the teacher had a reasonable POV.

The point of view is unreasonnable : a child naked is not Porn unless the intent is to make it porn. No one would think to describe a child naked at the beach "porn", why would it be different on an album cover?

"the teacher said it could be CP"

So the POV paraphrased was: someone could consider it CP, I'm not going to argue whether it is or isn't, but it will be disruptive and I'm here to teach and the class to learn so let's nip this in the bud and get on with my lesson.

I thought that was a very reasonable take on the situation which was getting disruptive first period history class. much more reasonable than a suspension or the like.

I still don't think it's reasonable. Restricting yourself on such banalities feels way too much like "the (prude) terrorists have won"

If someone made the same case for a woman wearing a regular skirt in class, (I hope) everyone would be up in arms, and rightfully so.

So are there no limits to what a high school student can have on a Tshirt--realizing any such limit will be controversial and probably political to some degree?

(Personally, I had to wear a jacket and tie though, so what do I know.)

There's in fact a U.S. Supreme Court case, Tinker v. Des Moines, about the limits.

The students were wearing black armbands to protest the Vietnam War; they prevailed:

> The court observed, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

> The Court held that for school officials to justify censoring speech, they "must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint," that the conduct that would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."

(From https://en.wikipedia.org/wiki/Tinker_v._Des_Moines_Independe...)

I'm probably missing something but from me at two HSs and my three kids later in HS clothing connected to drugs, alcohol, smoking, profanity, nudity, and sex were prohibited.

What you're really not missing is that:

- The Supreme Court ruling probably has a fair bit of wiggle room especially where the clothing doesn't make an explicit political statement

- The Supreme Court is not in the classroom. The teacher is.

It's school, banning articles of clothing is their bread and butter. When I was in school it was war on spaghetti straps and yoga pants.

But there was no disruption until the teacher interrupted class to make an issue of it?

Something happened first, but I don't know what. I was near the map at the far wall while she and the disruption which initially attracted the teacher were near the door. It could have been comments about the shirt or just any other teenager antics.

JFC, what kind of mad, backwards world do we live in where people consider a photo of a naked baby to be CP? Every family out there has photos of their children naked as babies.

A litigious one that jumps at any opportunity to take offense of there's a chance one can profit from it?

Only in the west can an image of a naked baby be intentionally misconstrued as "pornography". It doesn't meet any definitions of pornography, the only reason people think it's "reasonable" is group think.

Only in the "west"? I can think of quite of few countries that are not in the west where that would almost certainly be considered improper and a number where it would probably be outright illegal.

You can "think of quite of few" but you fail to list even a single one. Why even bother to comment if you're just going to say a bunch of nothing?

You think that would be considered acceptable in most Middle Eastern countries? And, indeed, many Asian countries are relatively conservative about public nudity.

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