By Blake Brittain
(Reuters) -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."
Elden's attorney Robert Lewis said that Elden is "very pleased with the decision and looks forward to having his day in court."
Elden, now 32, first sued the band and its label Universal Music Group (AS:UMG) 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 that 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. 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.