A federal judge has granted Nirvana's motion to dismiss a lawsuit filed by Spencer Elden over his nude depiction as a baby on the cover of their Nevermind album. But the case can be resurrected.
On Monday (January 3rd), US District Court in Central California Judge Fernando M. Olguin dismissed the case "with leave to amend," after Elden's camp failed to respond to the Nirvana legal team's filing to the lawsuit last month.
Nirvana sought to have the case dismissed stating the Elden had "spent three decades profiting from his celebrity as the self-anointed 'Nirvana Baby'" and had "re-enacted the photograph in exchange for a fee" a number of times since the original photo was taken in 1991 when he was four-months old.
Elden filed a lawsuit claiming that the band violated child pornography laws by using the nude baby photo for the album cover. Elden's legal team had until last Thursday, (December 30th), to file their opposition to the Nirvana team's request to have the suit dismissed.
However, Elden's team have until January 13th to refile a second complaint. Spin reports that the ruling states, "Failure to timely file a Second Amended Complaint shall result in this action being dismissed without prejudice for failure to prosecute and/or failure to comply with a court order."