in August 2021 for child exploitation and pornography, saying the band knowingly distributed a naked photo of him as a baby on the 1991 album cover and profited from it. Elden was just 4 months old when he was photographed for the cover. Now 30, he was seeking $150,000 in damages.
The defendants in the case — which included former band members, as well as Kurt Cobain's estate, photographer Kirk Weddle, Universal Music, Geffen Records, Warner Records and MCA Music — filed a motion to dismiss the case last month.
Elden had until Dec. 30 to respond to the motion, but his legal team missed the deadline and so the case was dismissed.
Judge Fernando M. Olguin of the Central District Court in California said Elden and his legal team have until Jan. 13 to re-up the case. If the defendants file another motion to dismiss, both sides will meet on Jan. 20.
"In accordance with the court's order we will be filing a Second Amended Complaint very soon. We are confident that Spencer will be allowed to move forward with the case," Marsh Law, the firm that represents Elden, said in a statement.
In their motion to dismiss the lawsuit, the defendants say Elden profited from being on the album cover as a baby and has benefited from it as an adult.
"Elden has spent three decades profiting from his celebrity as the self-anointed 'Nirvana Baby.' He has re-enacted the photograph in exchange for a fee, many times; he has had the album title Nevermind tattooed across his chest; he has appeared on a talk show wearing a self-parodying, nude-colored onesie; he has autographed copies of the album cover for sale on eBay; and he has used the connection to try to pick up women," the defendants say.
In November, Elden's legal team released a statement in response to the album's 30th anniversary, when the cover was rereleased.
"It's past time to finally put an end to the child exploitation and violation of privacy our client has endured for his entire life," they wrote.
A version of this story originally appeared in the Morning Edition live blog