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A U.S. appeals court has revived a lawsuit accusing Nirvana of publishing child pornography by using a photo of a naked baby on the cover of their hit 1991 album Nevermind.

Spencer Elden – who featured on the band’s album cover as a 4-month-old baby – sought personal injury damages last year for “unlawful conduct” which the 32-year-old claimed had caused him “permanent harm.”

The district court dismissed the action last December, due to the 10-year statute of limitations.

However, on Thursday, the U.S. Court of Appeals for the Ninth Circuit overturned the district court’s decision, ruling that each new republication of the image resets the previous statute of limitations on Elden’s claim.

“Victims of child pornography may suffer a new injury upon the republication of the pornographic material,” Judge Sandra Segal Ikuta wrote for a three-judge panel. “This conclusion is consistent with the Supreme Court’s view that every viewing of child pornography is a repetition of the victim’s abuse.”

The case is set to be returned to a lower court, where Elden will have to prove the image constitutes child pornography.

“We will defend this meritless case with vigor and expect to prevail,” Nirvana attorney Bert Deixler said in a statement.