Lori Falce: Frivolous lawsuits? Don't be a baby

Everyone loves to talk about that hot, hot coffee at McDonald’s and the frivolous lawsuit that popped up when a woman complained that her hot coffee was ­— surprise, surprise — hot.

This is why we can’t have nice things, they say. This is why we have warnings on irons not to use on clothes while you are wearing them. Why a popular baby seat was recalled to have a sticker put on the side reminding people not to stick a baby on a high table unattended. Why we need to be told that the shelf on a ladder is not a step. Because people file lawsuits like the McDonald’s lady.

But the 1994 McDonald’s suit that is frequently used as a punchline is a serious case that was decided in the plaintiff’s favor for a reason. She sustained severely debilitating burns that required extensive surgery because the temperature was not just coffee hot but lava hot. The suit was not frivolous, and every lawyer I know considers the public perception of the case a pet peeve.

I thought about that Wednesday when a story popped up about the baby who graced the cover of Nirvana’s 1991 album “Nevermind.” The album was significant in rock history, a line of demarcation showing where the plaid-clad world of Seattle grunge took over the music scene. The cover shows a naked baby underwater in a pool, reaching toward a floating dollar bill on a fish hook.

That baby is grown up now. At 30, Spencer Elden is mad as hell and he’s not going to take it anymore. Despite recreating the cover (albeit clothed) in at least two previous photo shoots, Elden says the cover has ruined his life, filing a lawsuit against the band, despite it being broken up after the death of lead singer Kurt Cobain in 1994. Nonetheless, living band members Dave Grohl and Krist Novoselic, as well as Cobain’s widow and executor Courtney Love, plus the photographer, art director and others involved in shooting the cover are all named in his suit. He would like $150,000 apiece, please. The total would top $1 million.

The charge? Child pornography.

How do I know that this is not child pornography? I mean, it’s true, Elden’s baby bits are clearly visible in the image, if you want to focus on them instead of the overall work. However they are visible the same way naked cherubs are in museums.

No, I know the picture isn’t pornography because in an article about the suit for the New York Post, Elden stands holding the cover, showing it to the world. The Post happily published it. If it were pornography — and if Elden honestly believed it to be so — he should be guilty of disseminating pornography of himself, the same way a 15-year-old girl who sends her boyfriend images of herself that are clearly over the line can be prosecuted.

I do not know why Elden is filing this claim 30 years after his watery brush with fame other than to assume he wants to cash in. His parents got $200 for the picture, according to Variety. Hey, why aren’t the parents named in the suit? Probably because they don’t have $150,000 apiece.

I don’t know how Elden’s case will work out. Maybe some or all of the parties will settle with him to make it go away. That’s a time- tested practice in civil litigation. Maybe it will go to court or maybe a judge will roll his eyes and toss it out.

But whatever the outcome, its legacy should be taking the heat off the McDonald’s lady as the Nirvana baby becomes the new symbol of frivolous lawsuits.