A lawsuit accusing legendary rock band Nirvana of publishing child sexual abuse images by using a picture of a naked four-month-old baby on an album cover has been revived.
The 9th US Circuit Court of Appeals overturned a lower court’s ruling that Spencer Elden, the baby on the cover of Nevermind, had waited too long to bring his case forward.
However, the court did not address whether the cover constitutes child sexual abuse or not.
“This procedural setback does not change our view,” Nirvana lawyer Bert Deixler said on Thursday, adding they will defend this “meritless case with vigour”.
Image: Part of the picture on the Nevermind cover
Mr Elden’s lawyer, Robert Lewis, said his client is “very pleased” with the decision and “looks forward to having his day in court”.
A judge in Los Angeles said last year that Mr Elden’s lawsuit must be dismissed as he did not sue within a 10-year period after learning of the cover.
But the appeals court concluded he could still sue based on Nirvana’s republication of the cover more recently, including in a re-released version of Nevermind from 2021.
Image: Kurt Cobain of Nirvana on stage in December of 1993. Pic: AP/Scott Weiner / MediaPunch /IPX
The panel found that each republication of an image “may constitute a new personal injury”.
The lawsuit stems from Nirvana’s use of a photo taken by Kirk Weddle at the Pasadena Aquatic Centre in California, which depicts Mr Elden swimming naked towards a dollar bill on a fish hook.
Other defendants include surviving Nirvana members Dave Grohl and Krist Novoselic, late lead singer Kurt Cobain’s widow Courtney Love and photographer Mr Weddle.
Others associated with the record were also named, and he was seeking $150,000 (£109,000) in damages in 2021.
The album artwork is seen by many as the band making a statement on capitalism, with the photo digitally imposed to include the dollar bill on a fishhook to make it look like Elden was trying to grab it.
It is widely considered one of the greatest album covers of all time.
In the original complaint, lawyer Mr Lewis said the depiction of the baby reaching for the dollar bill makes Elden look “like a sex worker”.
The lawsuit also alleged that the band failed to uphold a promise to cover his exposed genitals with a sticker.
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