A U.S. appeals court on Thursday revived a lawsuit accusing the rock band Nirvana of publishing child pornography by using a photograph of a naked four-month-old baby on the cover of its hit 1991 album Nevermind.

The 9th U.S. Circuit Court of Appeals overturned a lower court’s decision that Spencer Elden, the baby depicted on the cover, had waited too long to bring his lawsuit against the seminal Seattle grunge band.

The court did not address whether the cover of Nevermind constitutes child pornography.

‘This procedural setback does not change our view,’ Nirvana attorney Bert Deixler said on Thursday. 

‘We will defend this meritless case with vigor and expect to prevail.’

A U.S. appeals court on Thursday revived a lawsuit accusing the rock band Nirvana of publishing child pornography by using a photograph of a naked four-month-old baby on the cover of its hit 1991 album Nevermind

The 9th U.S. Circuit Court of Appeals overturned a lower court’s decision that Spencer Elden, the baby depicted on the cover, had waited too long to bring his lawsuit against the seminal Seattle grunge band; Kurt Cobain, Dave Grohl and Krist Novoselic of Nirvana in 1995

The matter will be returned to a lower court, requiring Elden to prove his claim that the image qualifies as child pornography. 

Representatives for Elden did not immediately respond to requests for comment on the decision.

Elden, now 32, first sued the band and its label Universal Music Group in 2021, accusing them of sexually exploiting him through his depiction on the Nevermind album cover and causing him continuing personal harm.

Other defendants include surviving Nirvana members Dave Grohl and Krist Novoselic, late lead singer Kurt Cobain’s widow Courtney Love and photographer Kirk Weddle.

The lawsuit stemmed from Nirvana’s use of a photo taken by Weddle at the Pasadena Aquatic Center in California.

It depicted Elden swimming naked toward a dollar bill pierced on a fish hook.

U.S. District Judge Fernando Olguin in Los Angeles said last year that Elden’s lawsuit must be dismissed because he did not sue within a 10-year limitations period after learning of the cover.

A unanimous 9th Circuit panel reversed the decision on Thursday. 

Elden, now 32, first sued the band and its label Universal Music Group in 2021, accusing them of sexually exploiting him through his depiction on the Nevermind album cover and causing him continuing personal harm; Elden in 2016

The court did not address whether the cover of Nevermind constitutes child pornography; Cobain seen in 1993

Other defendants include surviving Nirvana members Dave Grohl and Krist Novoselic, pilm porno late lead singer Kurt Cobain’s widow Courtney Love and photographer Kirk Weddle.; seen in 1993

The appeals court said that Elden could still sue based on Nirvana’s republication of the cover more recently, including in a re-released version of Nevermind from 2021. 

In 1991, Elden filed suit seeking significant financial damages for ‘unlawful conduct’ which he says has caused him ‘permanent harm’.

In 2016, Elden recreated the famous shot for the 25th anniversary of the album. 

For the tenth anniversary of Nevermind in 2001, its 17th in 2008, and its 20th in 2011, he also reproduced it. 

‘Every five years or so, somebody’s gonna call me up and ask me about Nevermind… and I’m probably gonna get some money from it,’ he told Rolling Stone at age 12 in 2003.