Nirvana's lawyer has said it is a ‘procedural setback’ that the legal case against the band has been reopened.
Spencer Elden, 32, appeared on Nirvana's 1991 Nevermind album and quickly became known as the 'Nirvana baby'.
The album cover featured four-month-old Elden naked while underwater in a pool seemingly in pursuit of a dollar bill on a fish hook.
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However, as an adult he moved to file a lawsuit against the two surviving members of the band (Dave Grohl and Krist Novoselic) as well as Kurt Cobain’s estate, several record labels and photographer Kirk Weddle.
The 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'.
However, this was thrown out in 2022 as US District Judge Fernando Olguin, of Los Angeles, said the suit had not been filed within the 10-year statute of limitations.
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The dismissal of Elden’s third version of the complaint meant he was unable to file a fourth, although he was entitled to appeal the decision.
His appeal has now been deemed successful and a three-judge panel on the United States Court of Appeals for the Ninth Circuit reversed the initial decision.
They stated that each republication of an image 'may constitute a new personal injury'.
In September 2021 the band re-released Nevermind and the case is now expected to return to the district court.
Bert H. Deixler, a lawyer for Nirvana, called the appeal decision a 'procedural setback' and said: "We will defend this meritless case with vigor and expect to prevail."
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While Elden’s lawyer, Robert Lewis, said his client is ‘very pleased with the decision and looks forward to having his day in court’.
The photo was taken as Elden’s father was friends with the photographer, Weddle. The family was paid $200 for the image which was later edited to show the baby with the dollar bill.
Elden has previously claimed the use of the image has caused him significant emotional distress as well as stunted his normal development.
However, critics of his lawsuit on social media have shared multiple pictures of Elden recreating the picture on several occasions as he has grown up, including as an adult.
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In addition to this, speaking to The Guardian back in 2015, Elden said: "It’s always been a positive thing and opened doors for me."
But a year later, he told GQ Australia he insisted he’d grown to become 'p***ed off' with the cover, describing the use of his image as 'f***ed up'.