UPDATE: A judge dismissed the case against Nirvana on Monday, Jan. 3.
The defendants, which also include Universal Music Group and The David Geffen Company, filed to dismiss the lawsuit on Dec. 22. Since the plaintiff, Spencer Elden, did not file any opposition to the motion before the Dec. 30 deadline, a judge granted the dismissal.
However, it was "dismissed with leave to amend" and Elden has until Jan. 13 to file a Second Amended Complaint.
In a statement to E! News, Elden's attorney said his team intends to continue with the child pornography case. "In accordance with the court's order we will be filing a Second Amended Complaint very soon," the lawyer said. "We are confident that Spencer will be allowed to move forward with the case."
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Instead of a hit, the members of Nirvana now have a legal lawsuit on their hands.
On Aug. 24, the man who was photographed naked underwater as a baby for the band's iconic 1991 Nevermind album cover filed a lawsuit alleging that he was a victim of child pornography.
In court documents obtained by E! News, Spencer Elden, now 30, is suing for damages arising out of what the lawsuit alleges to be of each of the defendant's violations of federal criminal child pornography statues.
According to Spencer and his attorney Robert Y. Lewis, members of Nirvana including Dave Grohl and Krist Novoselic "knowingly produced, possessed and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so."
In court documents, the plaintiff alleges Nirvana "failed to take reasonable steps to protect Spencer and prevent his widespread sexual exploitation and image trafficking." As a result, the plaintiff claims Spencer "has suffered and will continue to suffer lifelong damages."
Spencer is asking for at least $150,000 from each of the defendants including Courtney Love, who is the executor of Kurt Cobain's estate. E! News has reached out to Dave, Krist, Courtney and Nirvana's teams for comment and has not heard back.
According to Entertainment Weekly, Spencer was cast for the album cover shoot at 4 months old along with three other babies. According to Geffen Records art director Robert Fisher, Kurt was inspired after watching a documentary about babies being born underwater.
According to Robert, Kurt "thought the image would make a cool cover. That vision was a bit too graphic, so we went with the swimming baby instead."
Entertainment Weekly reported that baby Spencer was paid $250 and was later presented with a triple-platinum album by the president of Geffen Records.
The cover image did receive some backlash when it was released in 1991. The plaintiff claimed in court documents this week that Kurt previously agreed to redact Spencer's image by releasing the album with a sticker strategically placed over the baby's genitals with the text: "If you're offended by this, you must be a closet pedophile." The plaintiff alleged that the sticker was never incorporated into the album cover.
Back in September 2016, Spencer re-enacted the image for the record's 25th anniversary. "I said to the photographer, ‘Let's do it naked.' But he thought that would be weird,'" he told the New York Post. "So, I wore my swim shorts."
Spencer added, "The anniversary means something to me. It's strange that I did this for five minutes when I was 4 months old and it became this really iconic image. It's cool but weird to be part of something so important that I don't even remember."
(E! News and Universal Music Group are both part of the NBCUniversal family.)
This article was originally published on Aug. 25, 2021, at 12:05 p.m. PT and updated on Jan. 4, 2022, at 1:50 p.m. PT after the dismissal.