Back in September, the lawsuit brought by Nirvana's Nevermind cover baby Spencer Elden seeking damages over the cover art was dismissed by a U.S. District Court Judge for the third and final time, citing that the statute of limitations had run out. But that hasn't stopped Elden from continuing to pursue the case. He's now filed to appeal the dismissal.

The 31-year-old Elden was just four months old when his photo was used for the iconic Nirvana album cover. In his initial suit against the surviving members of the band, Courtney Love, Universal Music Group and photographer Kirk Weddle, Elden cited that the "unlawful conduct" used to create the photo had caused him "permanent harm," calling the usage of the photo child pornography.

The suit was officially dismissed on Sept. 2, but according to Spin, Elden's lawyers have now appealed the ruling, claiming that the judge presiding ruled in error concerning the statute of limitations on the case because the harm suffered to Elden from the photo is ongoing. They also cited Masha's Law which allows child pornography victims to seek monetary damages into adulthood.

In their filing, Elden's attorneys stated, "Courts have repeatedly held that distribution of child pornography infringes a victim’s dignity interests no matter the victim’s age at the time of distribution."

According to Spin, the filing also notes that Elden “is aware that Appellees are commercially exploiting the frontal nude image of him as a four–month–old child to sell a[n] album to millions of people (many of whom he does not know) around the world. This understandably causes him extreme ongoing psychic or emotional injury for which he is entitled to damages and an injunction. Although this remedy will not rid the world of his sexualized image, it will provide him the means to get mental health treatment and give him the benefit of knowing that the distribution and repeated violation of his privacy by Appellees will finally stop.”

In the Sept. 2 ruling by U.S. District Court Judge Fernando M. Olguin, the judge stated, “In short, because it is undisputed that [Elden] did not file his complaint within 10 years after he discovered a violation . . . the court concludes that his claim is untimely.” He added: “Because plaintiff had an opportunity to address the deficiencies in his complaint regarding the statute of limitations, the court is persuaded that it would be futile to afford plaintiff a fourth opportunity to file an amended complaint.”

Elden initially filed the suit in hopes of stopping the cover being used for a 30th anniversary special edition release, but the case continued beyond the release date. His initial lawsuit was rejected in January 2022 because he missed an initial deadline to respond to Nirvana's request for dismissal of the case.

While Elden has argued about the damage it has caused him, in the past he's also celebrated the album cover by recreating it in 2016 for the album's 25th anniversary.

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