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Nirvana 'Nevermind' baby album cover lawsuit dismissed by judge

The lawsuit claimed Nirvana used the image of Spencer Elden on its iconic 1991 album cover "to promote themselves and their music at his expense."

WASHINGTON — A judge has dismissed the lawsuit brought by the man who was photographed as a baby, naked, swimming toward a $1 bill on a fish hook on the iconic 1991 Nirvana "Nevermind" album cover. But the legal battle may not be done quite yet. 

Spencer Elden's lawsuit accused the band and others of child pornography and child sexual exploitation. The lawsuit, published by Pitchfork, alleged that neither Elden, who was 4 months old at the time, nor his guardians ever signed a release authorizing use of images of him and claimed he suffered "lifelong damages" because of the album cover.  

On Monday night, the judge presiding over the case dismissed the suit after Elden and his attorneys missed the deadline to file a response to the defendants' motion to dismiss the case, according to Variety, Pitchfork, Fox News and others. 

However, court documents stated Elden and his attorneys now have until Jan. 13 to refile the case. If they miss that deadline, the lawsuit will be dismissed without prejudice and closed. 

Elden's attorney told Fox News Digital that they plan to file an amended complaint "very soon" and believe Elden "will be allowed to move forward with his case."  

The lawsuit alleged the band "commercially marketed Spencer's child pornography and leveraged the shocking nature of his image to promote themselves and their music at his expense." 

   

Elden has taken part in photoshoots over the years, recreating the image.

In an interview with TIME in 2016 that marked the 25th anniversary of the album's release, Elden said he hadn't yet met Grohl or Novoselic -- the two surviving members of the band -- and that he had been unable to contact them in the past. He also said he had explored, unsuccessfully, ways to seek legal action against Geffen Records.