A California court just threw the baby out with the pool water. 

A lawsuit against Nirvana brought by the 30-year-old man who appeared as a nude infant on the cover of the band’s seminal album Nevermind has been dismissed by a U.S. district court judge. 

The plaintiff, Spencer Elden, sued the grunge band for its use of the photo, arguing that it constituted commercial child sexual exploitation. Among those named in the suit were Nirvana drummer Dave Grohl and bassist Krist Novoselic; the executor of Kurt Cobain’s estate, his widow Courtney Love; the photographer who took the image, Kirk Weddle; as well as several record companies connected with the album.

The judge, Fernando Olguin, dismissed the case on something of a technicality: Elden’s legal team had failed to meet a deadline to respond to Nirvana’s motion to dismiss. But Olguin left the door open for the album cover star to refile, setting a new deadline of January 13.

Spencer Elden recreates his pose from the cover of Nirvana’s album Nevermind, shot when he was a baby, 25 years later. Courtesy of John Chapple.

Nirvana’s team, meanwhile, remains steadfast that the suit has no merit.

“Elden’s claim that the photograph on the Nevermind album cover is ‘child pornography’ is, on its face, not serious,” the legal representatives for the band said in their motion to dismiss the case last month. They explained that, if Elden’s theory were accurate, anyone who owned a copy of the record would could be charged with felony possession of child pornography. 

Nudity, they argued, must come with “other circumstances that make the visual depiction lascivious or sexually provocative” to be considered child pornography.

The motion also pointed out that, for much of his life, Elden celebrated his connection to the band—and even profited from it. “He has re-enacted the photograph in exchange for a fee, many times; he has had the album title… 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 lawyers wrote. 

While they disputed that the image constitutes child sexual abuse material, they noted that the statute of limitations on Elden’s claim for such a violation would have expired in 2011—two decades after the album’s release. (The lawyers representing the defendants did not immediately respond to Artnet News’s request for further comment.)

Elden, a painter who once interned for artist Shepard Fairey, explained in a 2016 interview with GQ Australia that his view on the photograph changed after he reached out to Nirvana to see if the band would participate in an art show he was putting on. “I was asking if they wanted to put a piece of art in the fucking thing,” he said. “I was getting referred to their managers and their lawyers. Why am I still on their cover if I’m not that big of a deal?”

Edlen’s lawyer, Robert Lewis of the Marsh Law Firm, told Artnet News in a statement that “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 his case.”