A federal appeals court revived a child sexual exploitation lawsuit filed by the man who appeared naked as a 4-month-old on the cover of Nirvana’s 1991 album “Nevermind.” The lawsuit from Spencer Elden alleges that he has suffered “permanent harm”, while the band and others profited from the image of him underwater as a baby, naked, in a swimming pool. The suit says the image of Elden as a baby violated federal laws on child sexual abuse material, although no criminal charges were ever sought.

Last year, a federal judge in California threw out the lawsuit, but allowed Elden to file a revised version, which the judge later dismissed on grounds that it was outside the 10-year statute of limitations of one of the laws used as a cause of action.

The new decision from a three-judge panel of the Ninth U.S. Circuit Court of Appeals in California reversed that ruling and sent the case back to the lower court. The panel found that each republication of an image “may constitute a new personal injury”, citing the image’s appearance on a 30th anniversary reissue of “Nevermind” in 2021.

Nirvana attorney Bert Deixler called the ruling a “procedural setback,” writing in a statement: “we will defend this meritless case with vigor and expect to prevail.”

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