A federal appeals court on Thursday revived a child sexual exploitation lawsuit filed by the man who appeared naked as a four-month-old on the cover of Nirvana’s 1991 album Nevermind.
Spencer Elden’s lawsuit against the grunge rock group alleges that he has suffered “permanent harm” as the band and others profited from the image of him underwater in a swimming pool, appearing to grab for a dollar bill on a fish hook.
The suit says the image violated federal laws on child sexual abuse material, although no criminal charges were ever sought.
A federal judge in California threw out the lawsuit last year 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.
Thursday’s decision by a three-judge panel of the Ninth US Circuit Court of Appeals in California reversed that ruling and sent the case back to the lower court.
The appellate panel found that each republication of an image “may constitute a new personal injury” with a new deadline and cited the image’s appearance on a 30th anniversary re-issue of Nevermind in 2021.
“The question whether the ‘Nevermind’ album cover meets the definition of child pornography is not at issue in this appeal,” the court wrote, according to the New York Times.
A lawyer for Nirvana members did not immediately reply to an email seeking comment on Thursday evening.
However, attorney Bert Deixler issued a statement to Billboard magazine calling the ruling a “procedural setback”.
“We will defend this meritless case with vigor and expect to prevail,” he said.
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