The lawsuit brought against the rock band Nirvana by the guy who appeared on their legendary album cover Nevermind when he was a baby has been revived.
Spencer Elden, now 32, brought a lawsuit against Nirvana claiming the band had published child sexual abuse images.
The album cover features a four-month-old naked Elden grabbing at a dollar bill on a fish hook.
Yesterday (21 December), the 9th US Circuit Court of Appeals overturned a lower court’s ruling that Elden had waited too long to bring his case against the band.
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However, the court didn’t weigh in on whether the cover did break any laws or not.
Elden’s lawyer Robert Lewis said his client is ‘very pleased with the decision and looks forward to having his day in court’.
Nirvana lawyer Bert Deixler said: “This procedural setback does not change our view.
“We will defend this meritless case with vigour and expect to prevail.”
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Elden’s suit, which he launched back in 2021, claims the defendants 'knowingly produced, possessed and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so… Despite this knowledge, defendants failed to take reasonable steps to protect Spencer and prevent his widespread sexual exploitation and image trafficking'.
The suit alleges that his parents never signed a release authorising the use of the photo and he is seeking $150,000 (£118,000) from each of the 17 defendants, or unspecified damages to be determined.
A judge in Los Angeles last year ruled that the case should be dismissed as Elden didn’t bring it within 10-years of knowing about the cover.
However, the appeals court this week found that he could still sue over more recent replications of the cover, including a re-released version of the album in 2021.
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Former Nirvana drummer and Foo Fighters’ star Dave Grohl has previously shared his thoughts on the case.
Speaking to The Sunday Times Magazine in 2021, he said: "At some point, unfortunately, it becomes par for the course.”
He added: "I think that there's much more to look forward to and much more to life than getting bogged down in those kinds of things. And, fortunately, I don't have to do the paperwork."
As for how the cover might be reimagined for subsequent reissues, the musician said: "I have many ideas of how we should alter that cover but we'll see what happens... I'm sure we'll come up with something good."
Claire Reid