A child sexual exploitation lawsuit filed by the man who featured as a naked baby on the cover of Nirvana’s 1991 Nevermind album has been dismissed by a US judge.
Spencer Elden was 4 months old when his photo was taken in a pool at a swimming centre in Pasadena, California.
Now 30, he alleges that the picture, used by the group on their world-famous album, constitutes child pornography as it shows his genitalia.
But legal documents obtained by the PA news agency show that on Monday, US District Judge Fernando Olguin dismissed the case after Mr Elden’s lawyers missed the deadline to oppose a motion to dismiss the case made on December 22, 2021.
Mr Elden has now been given until January 13, 2022, to pursue his case and file a second amended complaint.
On the original album cover, he was shown naked underwater while appearing to be following a dollar bill being pulled along on a fish hook.
It has become one of the most famous album covers of all time.
Nevermind, powered by singles including Smells Like Teen Spirit, Come As You Are and Lithium, was a critical and commercial success, propelling the grunge band to global stardom.
Mr Elden attempted to sue the group, the photographer who took the picture, the record label and the group's members, including the estate of late Nirvana frontman Kurt Cobain, over the picture and its use.
In the original claim, filed in August 2021, lawyers alleged the band “knowingly produced, possessed, and advertised commercial child pornography depicting Spencer [and] knowingly received value in exchange for doing so”.
They said Nirvana also “failed to take reasonable steps to protect Spencer and prevent his widespread sexual exploitation and image trafficking”.
As a result, they alleged, Mr Elden “has suffered and will continue to suffer lifelong damages”.
The lawsuit also said Cobain, who took his own life in 1994 at age 27, was “instrumental” in choosing the album cover.
It is claimed Cobain agreed to strategically place a sticker over the baby’s private parts with the text: “If you’re offended by this, you must be a closet paedophile” — though the cover was ultimately released without any censorship.