The man suing the band Nirvana for sexual exploitation after being prominently featured on the cover of their album "Nevermind" as a baby had his case dismissed by a California judge on procedural grounds.
The federal judge dismissed the case Monday with "leave to amend" – as Spencer Elden's legal team had missed a deadline to file an opposition to Nirvana lawyers' December motion to dismiss the case.
Elden's team has until Jan. 13 to refile.
In 1991, when he was 4 months old, Elden was photographed naked in a swimming pool reaching for a dollar bill on a fish hook, an image that become one of the most iconic album covers of all time.
The album went on to sell 30 million copies, with songs such as "Smells Like Teen Spirit" becoming American pop cultural touchstones.
But neither Elden nor his legal guardians "ever signed a release authorizing the use of any images of Spencer or of his likeness, and certainly not of commercial child pornography depicting him," the original lawsuit said.
According to court documents Elden had never received any compensation for the image, and asked for $150,000 in damages from each of the 15 defendants – including the surviving former members of the band, Dave Grohl and Krist Novoselic, as well as the estate of the late lead singer Kurt Cobain, and the photographer, Kirk Weddle.
The lawsuit said Elden had suffered "extreme and permanent emotional distress," as well as "lifelong loss of income earning capacity," among other consequences.
In their December motion, Nirvana lawyers argued the statute of limitations had expired more than a decade ago, and that Elden's claim that the photo constituted child pornography was "not serious."
Elden recreated the album cover multiple times, including for its 25th anniversary.
Weddle, the original photographer, was a friend of his father's, the family told NPR in 2008.
They held a pool party during which Elden posed for the then-unknown band. Elden's parents were paid $200 for the original shoot.
