An appeals court has ruled that the band Nirvana can be sued for “child pornography” over the iconic “Nevermind” album cover.

The cover infamously features a naked baby in a pool reaching for a dollar bill.

Spencer Elden, the boy in the photo, who is now in his 30s, claims he was the victim of child exploitation — and that the cover amounted to child porn.

The image was taken in 1990 at the Pasadena Aquatic Center when Elden was four months old. Elden’s father, Rick, was involved in special effects for Hollywood and shared a studio with photographer Kirk Weddle, who had the contract to photograph a baby underwater.

Elden’s father previously told the media, “Babies have a gag reflex. If you blow in their face, they hold their breath. I blew in Spencer’s face and put him in the water. Kirk was shooting 18 frames a second, so Spencer was in the water for about two seconds.”

Elden has since claimed that appearing on the iconic cover caused “extreme and permanent emotional distress with physical manifestations’ and loss of education, wages, and enjoyment of life.”

However, lawyers for Nirvana’s estate have argued that Elden has “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.’”

“Elden re-enacted the photo for money multiple times. He even had the album title tattooed across his chest, he appeared on a talk show wearing a self-parodying nude-colored onesie, and even using the connection to try to pick up women.” the lawyers said in a statement to NBC News last year.

Over the years, Elden has recreated the cover at various stages in his life.

Elden also recreated the cover while wearing swim trunks for the album’s 25th anniversary in 2016.

The estate is represented by surviving members Dave Grohl and Krist Novoselic, Courtney Love, Kurt Cobain’s widow and executor, and Kirk Weddle.

A lower court had ruled that Elden could not sue because the statute of limitations had passed.

On Thursday, an appeals court ruled that Elden can now sue over the re-release of the album in 2021 for its 30th anniversary.

“If a victim learns a defendant has distributed child pornography and does not sue, but then later learns the defendant has done so again many years later, the statue of limitations…does not prevent the plaintiff from bringing a claim based on the new injury,” the court ruled.

The Hill reports, “Whether or not the album cover constitutes child pornography was not at issue in the appeal, according to documents.”

“Because Elden’s claim is not barred by the ten-year statute of limitations…the district court erred in granting Defendants’ motion to dismiss on statute of limitations grounds,” the court’s opinion stated.

The report noted, “Elden turned 18 in 2009 and initially sued the band in 2021 at 30 years old. Nirvana’s attorneys filed a motion to dismiss based on the 10-year statute of limitations, and, when Elden’s attorneys failed to file a motion to oppose by the deadline, the judge dismissed the lawsuit.”





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