A lawsuit brought by the man photographed as a baby for the cover of Nirvana’s album Nevermind has been dismissed. 

Thirty-year-old Spencer Elden sued surviving members of Nirvana and others in August 2021, alleging the classic 1991 album cover that showed him naked in a pool is child pornography. The cover famously depicts a baby chasing a dollar underwater, which Elden’s lawyers claimed made him look “like a sex worker,” Variety reports. He sought at least $150,000 from the defendants, including band members Dave Grohl and Krist Novoselic and photographer Kirk Weddle, alleging he suffered emotional distress. 

“Defendants intentionally commercially marketed Spencer’s child pornography and leveraged the shocking nature of his image to promote themselves and their music at his expense,” the lawsuit claimed.

But a judge in California has now dismissed the lawsuit “with leave to amend,” BBC News reports. According to SPIN, Elden’s legal team missed a deadline of Dec. 30 to file an opposition to a request by Nirvana to dismiss the lawsuit. The court will now “give plaintiff one last opportunity to amend his complaint,” and Elden’s team has until Jan. 13 to refile, per SPIN. 

Lawyers for Nirvana previously dismissed the lawsuit’s claims as “not serious” and argued that the statute of limitations passed 10 years ago, while pointing out that before filing the lawsuit, Elden had “re-enacted the photograph in exchange for a fee, many times,” according to BBC News. One of Elden’s lawyers told The New York Times that when he did reenact the cover, he “was clothed and he was an adult and these were very different circumstances.” 

Elden’s lawyer also told the Times that he was “asking for Nirvana to do what Nirvana should have done 30 years ago and redact the images of his genitalia from the album cover.”