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A judge has dismissed the lawsuit filed over Nirvana's "Nevermind" album cover.
Last year, Spencer Elden filed a lawsuit against Kurt Cobain’s estate and the band’s surviving members, saying the grunge pioneers violated federal child pornography statutes and sexually exploited him.
On Monday, a judge in the U.S. District Court in Central California dismissed the case after Elden missed a deadline to file an opposition to the defendants' motion to dismiss. The deadline was Dec. 30.
"The Motion [to Dismiss] was set for oral argument on January 20, 2022. The January 20, 2022 hearing date required plaintiff to file his Opposition to the Motion no later than December 30, 2021. Plaintiff did not file any opposition to defendants' Motion. Accordingly, the court will vacate the hearing date and grant defendants' motion," the filing obtained by Fox News Digital states.
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However, the filing states that the plaintiff does have "one last opportunity to amend his complaint." Elden's attorney, Robert Y. Lewis, confirmed to Fox News Digital on Tuesday that he plans to file a second amendment to his complaint.
"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," Lewis said on behalf of his client.
Elden has until January 13, 2022 to file the second amended complaint, according to the court documents.
A judge dismissed a lawsuit over Nirvana's "Nevermind" album cover. (DGC Records/John Chapple)
Then, any defendant has until January 27, 2022 to file an answer. If the defendants wish to file a second motion to dismiss, the parties will be expected to meet on January 20, 2022 at 10 a.m.
Elden previously argued that he has suffered "lifelong damage" from having his naked body plastered on the triple-diamond selling album, and claims neither he nor his guardians consented to the naked photoshoot, according to the federal suit.
The band, photographer, and record labels "intentionally marketed Spencer’s child pornography and leveraged the shocking nature of his image to promote themselves and their music at his expense," his suit alleged.
The plaintiff, who was four months old at the time of the 1991 underwater photo shoot, also claims he was forced to engage in "commercial sex acts," and that the band went back on an alleged promise to conceal his genitals on the album cover.
Dave Grohl has spoken out after being sued over his former band Nirvana's "Nevermind" album cover. (Photo by Alberto E. Rodriguez/Getty Images for Children's Hospital Los Angeles)
"The permanent harm he has proximately suffered includes but is not limited to extreme and permanent emotional distress with physical manifestations, interference with his normal development and educational progress, lifelong loss of income earning capacity, loss of past and future wages, past and future expenses for medical and psychological treatment, loss of enjoyment of life, and other losses to be described and proven at trial of this matter," the document read.
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In 2016, 25-year-old Elden recreated the cover fully clothed to pay homage to the hit record, which blasted indie rock to the mainstream with hits like "Smells Like Teen Spirit" and "Lithium."
The infant’s family was only paid $200 for the 15-second plunge in the pool, which only happened because Elden’s dad was a friend of the photographer, according to a 2008 NPR report.Even though he seemed excited about the reenactment in 2016, days earlier the LA-based artist told Australia GQ he wished the band had stayed away.
Kurt Cobain's estate was also named in the lawsuit. (Photo by Frank Micelotta/Getty Images)
"I’m pissed off about it, to be honest … I’ve been going through it my whole life. But recently I’ve been thinking, ‘What if I wasn’t OK with my freaking penis being shown to everybody?’ I didn’t really have a choice."
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In August, Dave Grohl, who was the band's drummer, broke his silence about the legal matter.
"I think that there's much more to look forward to and much more to life than getting bogged down in those kinds of things," he told The Sunday Times when asked about the suit, per Daily Mail.
The musician added: "And, fortunately, I don't have to do the paperwork."
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