The dismissal of Spencer Elden’s lawsuit against Nirvana over the use of his image on the cover of the band’s 1991 album Nevermind has reportedly been reversed, according to Pitchfork. On the cover, a four-month-old Elden appears fully nude in a swimming pool. Back in 2021, Elden filed a lawsuit against Nirvana, the band’s record labels, and photographer Kirk Weddle — who shot the cover art — claiming that the image constitutes child pornography.

The lawsuit was dismissed in January 2022 after Elden missed a deadline to respond to a motion for dismissal from Nirvana’s legal team. Elden would later file an adjusted suit that same month. The suit was once again dismissed in September 2022 by U.S. District Court Judge Fernando M. Olguin, due to an expired statued of limitations.

But today (December 21), a three-judge panel reversed Olguin’s ruling, noting that “each republication” of child pornography “may constitute a new personal injury.”

However, a footnote in the suit read “The question whether the Nevermind album cover meets the definition of child pornography is not at issue in this appeal.” The ruling also noted that Elden’s original complaint cited more recent reissues of the album cover, including a 30th Anniversary edition of the album released in 2021. Since 1991, Elden himself has also recreated the cover multiple times.”

A lawyer for Nirvana stated Pitchfork, saying, “This procedural setback does not change our view. We will defend this meritless case with vigor and expect to prevail.”

A laywer for Elden said. “The wholesale worldwide commercial exploitation of a baby might be iconic, but that doesn’t make it right and certainly doesn’t make it legal.”

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