Nevermind baby's lawsuit against Nirvana dismissed - for now

Spencer Elden in 1991 and more recently.
Spencer Elden in 1991 and more recently. Photo credit: Geffen/Spencer Elden/Facebook

A lawsuit against Nirvana by the man who appeared on the cover of their biggest album as an infant has been dismissed. 

Spencer Elden, 30, graced the cover of the band's 1991 record Nevermind. The famous photo, taken when he was four months old, showed his penis. 

Despite recreating the album cover a number of times during his life - with pants on - and having the name of the album tattooed on his chest, Elden last year claimed he was "forced to engage in commercial sexual acts while under the age of 18 years old", accusing the band of posing him in a "sexually provocative manner to gain notoriety, drive sales, and garner media attention, and critical reviews".

In his lawsuit, he claimed to have suffered "permanent harm" and accused the band and its record labels of distributing "child pornography".

He wanted to force the band to change the album's cover, despite 30 million copies already being sold - far more than label Geffen Records' original target of 200,000. 

Lawyers representing Nirvana, the estate of the band's main songwriter Kurt Cobain and his widow Courtney Love, the photographer and various record labels said Elden's claim would require a judge to rule that tens of millions of people around the world were in possession of child abuse material. They also said that after 30 years - during which time Elden had been happy to profit from his starring role - the statute of limitations had passed. 

A California judge dismissed Elden's lawsuit this week, but not because his case didn't necessarily have any merit - his legal team simply didn't respond in time to Nirvana's request for the case to be dismissed.

He gave Elden's team until January 13 to refile the lawsuit. If they don't, the case will be dismissed without prejudice - meaning there won't be something in the way if Elden wanted to try again.