A judge has thrown out a lawsuit against Nirvana made by the man who appeared as a naked baby on the cover of the band's classic 1991 album Nevermind.
Judge Fernando Olguin dismissed the case in California District Court on Monday after lawyers for Spencer Elden missed the deadline to file an opposition to the Nirvana estate's request to dismiss last month.
Elden, 30, who claims he was the victim of child exploitation and the cover amounted to child porn, has until January 13 to refile.
The image was snapped in 1990 at the Pasadena aquatic center when Elden was four months old. His father Rick was an artist who also rigged special effects for Hollywood, and let his son appear as a model for the band's new album.
At the time, Rick shared a studio in old town Pasadena with other artists to help pay the rent. Among them was photographer Kirk Weddle, who had the contract to photograph a baby underwater.
Rick told EchoPark: 'Babies have a gag reflex.
If you blow in their face, they hold their breath. I blew in Spencer's face and put him in the water. Kirk was shooting 18 frames a second, so Spencer was in the water for about two seconds.'
The former baby model claims that appearing on the album cover caused 'extreme and permanent emotional distress with physical manifestations', as well as loss of education, wages and 'enjoyment of life'.
Lawyers for the band's estate - surviving members Dave Grohl and bokep Krist Novoselic; Courtney Love, Kurt Cobain's widow and executor; and Kirk Weddle, the photographer of the cover image - said Elden had 'spent three decades profiting from his celebrity as the self-anointed 'Nirvana Baby.''
Elden re-enacted the photo for money 'many times,' the lawyers said, even had the album title tattooed across his chest, appeared on a talk show wearing a self-parodying nude-colored onesie and had 'used the connection to try to pick up women.'
The legal team said that the statute of limitations had expired and that Elden's claims were too 'absurd' to even consider.
'A brief examination of the photograph, or Elden's own conduct (not to mention the photograph's presence in the homes of millions of Americans who, on Elden's theory, are guilty of felony possession of child pornography) makes that clear,' they said.
The latest: Nirvana and estate of Kurt Cobain are being sued by Spencer Elden, a man, now 30, who was the baby seen on the group's Nevermind album cover in 1991 (pictured)
In the motion, attorney Bert Deixler argues that Elden has gotten the album's name tattooed on his chest and used his celebrity to try to pick up women
Legendary: Nirvana became one of the synonymous bands of the 'grunge movement,' and was formed of Dave Grohl, the late Kurt Cobain and Krist Novoselic (pictured in 1993)