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AFP

The US man who appeared as a baby on the cover of Nirvana's

Los Angeles (AFP) – Earlier this year the man who as a baby was photographed naked for the cover of Nirvana’s “Nevermind” album sued the band for sexual exploitation — and now a California judge has dismissed the case on procedural grounds.

The federal judge dismissed the case Monday as Spencer Elden’s legal team had missed a deadline to file an opposition to Nirvana lawyers’ December motion to drop the case.

Elden’s team has until January 13 to refile. In a statement to AFP on Tuesday his lawyer Robert Lewis said they would do so “very soon.”

“We are confident that Spencer will be allowed to move forward with his case,” Lewis said.

In 1991, when he was four months old, Elden was photographed naked in a swimming pool reaching for a dollar bill on a fish hook, an image that become one of the most iconic album covers of all time.

The album went on to sell 30 million copies, with songs such as “Smells Like Teen Spirit” becoming American pop cultural touchstones.

But neither Elden nor his legal guardians “ever signed a release authorizing the use of any images of Spencer or of his likeness, and certainly not of commercial child pornography depicting him,” the original lawsuit said.

According to court documents Elden had never received any compensation for the image, and asked for $150,000 in damages from each of the 15 defendants — including the surviving former members of the band, Dave Grohl and Krist Novoselic, as well as the estate of the late lead singer Kurt Cobain, and the photographer, Kirk Weddle.

The lawsuit said Elden had suffered “extreme and permanent emotional distress,” as well as “lifelong loss of income earning capacity.”

In their December motion Nirvana lawyers argued the statute of limitations had expired more than a decade ago, and that Elden’s claim that the photo constituted child pornography was “not serious.”

Elden recreated the album cover multiple times, including for its 25th anniversaries.

Weddle, the original photographer, was a friend of his father’s, the family told NPR in 2008.

They held a pool party during which Elden was photographed underwater for the then-unknown band. Elden’s parents were paid $200 for the original shoot.