Spencer Elden, the baby on the (formerly) iconic album cover of Nirvana’s Nevermind, is suing fifteen people, including the surviving Nirvana group members, Kurt Cobaine’s estate, Courtney Love (Cobaine’s former wife), and the photographer Kirk Weddle, for violation of his right of publicity. Specifically, he is claiming that the group and photographer failed to secure a signed release to use his image on their album coverage. Additionally, he alleges that the picture which shows his entire nekkid body constitutes child pornography. He is seeking $150,000 from each defendant (there are fifteen in total) for a whopping 2.25 million dollars in damages.
Okay. So what does that have to do with intellectual property? Or Creative Genius Law?
The basis of Elden’s claim, failure to secure a release or agreement allowing usage of his image, is one of the many intellectual property rights available for protection. Here in the United States, there isn’t a federal Right of Publicity, however, several other related facets of intellectual property are providing federal courts with guidance for these types of cases, so most of the case law and protection are granted through the states.
The stronger protections are provided in states like New York and California due to the states established entertainment and music industries. The International Trademark Association defines the right of publicity (which is also known as “personality rights,” “rights of persona,” etc.), as “an intellectual property right that protects against the misappropriation of a person’s name, likeness, or other indicia of personal identity—such as nickname, pseudonym, voice, signature, likeness, or photograph—for commercial benefit.”
Currently, the most effective means to protect the rights of publicity for everyone from baby models to Drake, include state and federal trademark registrations, copyright registrations and excellent legal representation. *wink*
Soooooooooooo..is Elden about to be rich, rich??
The case isn’t a clear cut, slam dunk. Elden now 30 years old has recreated the infamous picture several times throughout his life and seemed to enjoy the notoriety that came followed the cover photo. However, at other times, he has voiced his displeasure with only receiving a whole $200 for an album that has sold over 30 million copies worldwide. If a court finds that he has a leg to stand on, it is likely the two parties will settle for an undisclosed amount. This is quite an interesting case, so we’ll keep you posted on any novel and/or compelling legal developments!
In the meantime, in between time, are you a public figure, model, artist, brand, creative or something in between that often works with other brands, photographers, or other creative entities? As your strategic legal partner, we can help build a brand protection strategy strong enough to protect “me, you, your mama, and your cousin too.” You don’t have to have huge Instagram campaigns or photographs featured in Vogue. You just need a vision for yourself and some goods and/or services to match. We are here to help you, no matter where you are in your vision. Whether you are planning or working the plan on the verge of a breakthrough, let us help! It only takes one step to get started. Submit your intake here.