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Child porn suit by ‘Nevermind’ baby tossed on a technicality

Spencer Elden has until Jan. 13 to file an amended complaint addressing why his claims aren't time-barred.

LOS ANGELES (CN) — A missed deadline doomed the lawsuit by the man who was depicted as a naked baby on the cover of Nirvana's 1991 album "Nevermind."

After plaintiff Spencer Elden missed the deadline to file his opposition to a motion to dismiss by former band members and their record company, U.S. District Judge Fernando Olguin ruled Monday that Elden can file an amended complaint by Jan. 13. Olguin said in the amended complaint, Elden should address the defendants' arguments that he waited too long with his personal injury and sex trafficking claims.

"Given the policy favoring amendment of complaints, the court will grant defendants’ motion and give plaintiff one last opportunity to amend his complaint," Olguin wrote.

Elden's lawyer, Robert Lewis, said in an email that they would be filing an amended complaint soon.

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

In their request to dismiss the lawsuit, UMG Recordings, the estate of the late Kurt Cobain and the other Nirvana members said Elden spent 30 years profiting from his celebrity as "the self-anointed 'Nirvana Baby."

"He has reenacted the photograph in exchange for a fee, many times; he has had the album title 'Nevermind' tattooed across his chest; he has appeared on a talk show wearing a self-parodying, nude-colored onesie; he has autographed copies of the album cover for sale on eBay; and he has used the connection to try to pick up women," the defendants said in their motion to dismiss.

They also said Elden's claim the album cover is child pornography can't be taken seriously because any nudity must be coupled with "other circumstances that make the visual depiction lascivious or sexually provocative" to fall within the parameters of the child pornography statute.

Aside from that, they argue the statute of limitations has lapsed on Elden's claims as a victim of child pornography and sex trafficking.

Elden sued the band and UMG this past August, claiming he was four months old in 1991 when he was photographed at the Pasadena Aquatic Center for Nirvana’s album cover. Founded just a few years prior, the band had been a staple of Seattle’s grunge scene but not yet a household name.

While dozens of pictures were taken that day, Elden claims Cobain picked the image that depicted the baby “like a sex worker” reaching for a dollar bill for the album cover.

Elden says he suffered and continues to suffer extreme and permanent emotional distress from his depiction on the "Nevermind" cover.

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