A federal appeals court ruled against the grunge rock group Nirvana on Thursday, reviving a lawsuit about the band’s use of a naked baby on the cover of its 1991 album “Nevermind.”
A district court judge had dismissed Spencer Elden’s lawsuit that said he was a victim of child sexual abuse imagery, ruling that the complaint had not been filed within the 10-year statute of limitations. But a three-judge panel on the United States Court of Appeals for the Ninth Circuit reversed that decision, finding that “each republication” of an image “may constitute a new personal injury.”
The appeals court noted that Mr. Elden’s 2021 complaint says Nirvana has reproduced the album cover within the past 10 years, including the band’s September 2021 rerelease of “Nevermind.”
“The question whether the ‘Nevermind’ album cover meets the definition of child pornography is not at issue in this appeal,” the court wrote in a footnote.
The case will now return to the district court.
A lawyer for Mr. Elden did not immediately respond to a request for comment. Bert H. Deixler, a lawyer for Nirvana, said in a statement that the opinion was a “procedural setback.”
“We will defend this meritless case with vigor and expect to prevail,” Mr. Deixler said.
Mr. Elden was 4 months old when he was photographed in 1991 by a family friend at the Rose Bowl Aquatics Center in Pasadena, Calif. His parents were paid $200 for the picture, which was later altered to show the baby chasing a dollar, dangling from a fishhook.
In the decades that followed, Mr. Elden seemed to celebrate his appearance on the classic album cover, recreating the moment — though not in the nude — for several of the album’s anniversaries.
But in the lawsuit, Mr. Elden said he had suffered “permanent harm” because of his association with the album, including emotional distress and a “lifelong loss of income-earning capacity.”
The lawsuit did not detail the losses but said that Nirvana, the producers of the album and others had all profited at Mr. Elden’s expense.
Lawyers for Nirvana argued that Mr. Elden had benefited financially from the album cover by re-enacting the photograph for a fee and making public appearances parodying the image. They have also denied that the picture in question was an example of child sexual abuse imagery, noting that the photograph is present in the homes of millions of Americans.
Maria Cramer contributed reporting. Sheelagh McNeill contributed research.
