A judge has dismissed a lawsuit brought against Nirvana by the man who featured on the cover of their album Nevermind as a baby.
Spencer Elden filed the lawsuit in August, accusing the band of violating federal pornography laws and exploiting him, as an image of him swimming naked as an infant was featured in the artwork for the 1991 record.
According to editors at Spin magazine, Judge Fernando M Olguin dismissed the case “with leave to amend” at the California District Court on Monday.
He ruled lawyers for Elden missed the deadline to file an opposition motion to the defunct band’s legal team request to dismiss the case, which was made in December. Elden has until 13 January to refile his suit.
The 30-year-old claimed he was the victim of child sexual exploitation and that the cover artwork was a child sexual abuse image that had caused him “extreme and permanent emotional distress with physical manifestations”. He also claimed he had suffered loss of education, wages and “enjoyment of life”.
Attorneys for the band’s estate, which represents surviving members Dave Grohl and Krist Novoselic, as well as Courtney Love, the widow of late frontman Kurt Cobain, accused Elden of “profiting” from the image for decades before filing his suit.
Kirk Weddle, the photographer of the cover art, was also named as a defendant.
Their application for dismissal stated the complainant had, “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’, citing his recreation of the image on the album’s 15th and 20th anniversaries.
They also alleged he had the album’s title tattooed on his chest, claiming that the statute of limitations expired more than a decade ago as Elden had long known of the artwork.
Elden’s description of the image as child pornography was also called “spurious” as it would mean all those in possession of the album would technically be in possession of an illegal image of a child.
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