Spencer Elden, now 30 years old, had his claim thrown out after representatives for the band's estate argued he has spent his life profiting from his appearance on the album cover.
ADVERTISEMENTNirvana have won the latest round of their legal battle over the cover art on iconic album Nevermind.
A judge has dismissed a lawsuit brought against Nirvana by the man who featured on the cover of their album Nevermind as a baby.
Spencer Elden filed the lawsuit in August, accusing the band of violating federal pornography laws and exploiting him in the artwork for the 1991 record.
30-year-old Elden said he had suffered “lifelong damages” as the band and others profited from the ubiquitous image of him naked underwater appearing to swim after a dollar bill on a fish hook.
He sought at least $150,000 (€110,000) from each of more than a dozen defendants, including the record labels involved in the release and re-release of Nevermind, and cover photographer Kirk Weddle, a former family friend.
The claim was tossed after Elden's attorney's failed to challenge the dismissal by a December 30 deadline.
Why was Spencer Elden suing the Nirvana estate over the picture?
The 30-year-old claimed he was the victim of child sexual exploitation and that the cover artwork was a child sexual abuse image that had caused him "extreme and permanent emotional distress with physical manifestations".
He also claimed he had suffered loss of education, wages and "enjoyment of life".
Elden featured in the genre-defining image after due to his father's friendship with photographer Weddle, who took pictures of several swimming babies in several scenarios at the Rose Bowl Aquatic Center in Pasadena, California.
At the time of the shoot Elden's parents were famously paid $250 (€220) for the picture.
When the photo was shot, Nirvana were a little-known band with no sense they were making a generation-defining album in 'Nevermind'.
Their first major label release included 'Smells Like Teen Spirit', 'Come as You Are', and 'Lithium'.
Frontman Kurt Cobain would go on died from suicide in 1994.
'Elden has spent three decades profiting from his celebrity'
Attorneys representing the defence – which includes the late Kurt Cobain's wife Courtney Love and band's surviving members Dave Grohl and Krist Novoselic – argued the motion says the lawsuit is “on its face, not serious,” and Elden’s conduct reflects that.
“Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby,‘” the dismissal document says.
"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.”
Elden's description of the image as child pornography was also called "spurious" as it would mean all those in possession of the album would technically be in possession of an illegal image of a child.
Elden has until 13 January to refile his suit.
