The lawsuit filed against Nirvana by Nevermind cover baby Spencer Elden, now 30, who claimed the image was child pornography and child exploitation, has been dismissed by a judge, the BBC reports. California Judge Fernando M Olguin dismissed the suit "with leave to amend," so Elden and his legal team have until January 13 to refile with changes.

Nirvana had issued a formal response to the suit in December, calling it "not serious" and seeking its dismissal. They noted that the statute of limitations had expired in 2011, making it too late for Elden to sue, and that he had "spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby,'" re-enacting the photograph and using his connection to the band to try to pick up women.

Elden had until December 30 to respond to Nirvana's motion to dismiss the suit, but missed the deadline, the BBC points out. His lawyers previously told Variety that because Nevermind continues to be sold with his image, the statute of limitations doesn't apply.

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