The lawsuit – filed in August against members of the former band, its music executives and the photographer from the shoot – was brought forward by 30-year-old Spencer Elden, who claimed he will "suffer lifelong damages" thanks to the album cover, which depicts him as a baby with his genitals showing on the cover of their 1991 hit album.
After the defendants motioned for the lawsuit's dismissal Dec. 22, Elden and his legal team had until Dec. 30 to file an opposition, but did not do so, according to legal documents filed Monday and obtained by USA TODAY.
Therefore, an oral argument originally scheduled for Jan. 20 was vacated, though United States district judge Fernando M. Olguin granted Elden "one last opportunity" until Jan. 13 to amend his complaint before the case is tossed out once and for all.
“In accordance with the court's order we will be filing a Second Amended Complaint very soon," Elden's attorneys from the Marsh Law Firm said in a statement to USA TODAY Tuesday. "We are confident that Spencer will be allowed to move forward with the case.”
Elden filed a lawsuit in August to Los Angeles federal court against band members Dave Grohl, Chad Channing, Krist Novoselic and the late Kurt Cobain, whom Elden accuses of knowingly producing, possessing and advertising "commercial child pornography" when they put a nude photo of him as a baby on the cover of their album, which catapulted them to stardom.
"(The) 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," reads an excerpt from the suit, previously obtained by USA TODAY. "Defendants used child pornography depicting Spencer as an essential element of a record promotion scheme commonly utilized in the music industry to get attention, wherein album covers posed children in a sexually provocative manner to gain notoriety, drive sales, and garner media attention, and critical reviews."
Elden asked for a trial by jury and $150,000 from each of the 17 defendants, which include the former members of the band along with Courtney Love, Cobain's estate executor, the album's photographer and designer, and record companies Universal Music Group, Geffen, Warner and MCA Music.
The lawsuit alleges that Cobain, who died in 1994 at age 27, purposefully chose the image of Elden with his penis visible, reaching for a dollar bill dangling from a fishhook "like a sex worker."
"Spencer’s true identity and legal name are forever tied to the commercial sexual exploitation he experienced as a minor which has been distributed and sold worldwide from the time he was a baby to the present day," the lawsuit adds.
Elden previously recreated the cover to celebrate the 15th and 25th anniversaries of the album's release. In 2016, he told The New York Post he volunteered to do his latest iteration of the cover naked, but the photographer "thought that would be weird."
He spoke positively of the cover a year prior, speaking in 2015 to USA TODAY at Seattle's Museum of Pop Culture, which displayed the "Nevermind" album cover in an exhibit titled "Nirvana: Taking Punk to the Masses."
Photographer Kirk Weddle, who is named as a defendant in the lawsuit along with graphic designer Robert Fisher, was tasked with shooting the cover photo for what would become Nirvana's breakthrough album. He was friends with Elden's parents and asked if their 4-month-old baby could be part of the shoot.
"My dad was like, 'Ah, no problem, man. We'll just go down to the pool and throw him (in) and that'll be it,' " Elden recalled. "And it was no big deal. And no one knew what it was going to become."
His parents were paid $200, he said. To date, the album has sold more than 30 million copies, according to the lawsuit, which also claims neither Elden nor his parents ever signed a release authorizing his images.
"It's only opened doors for me and been a really positive, fun experience," he said in the 2015 interview.
And: Ranking the songs on Nirvana's classic album 'Nevermind'
This article originally appeared on USA TODAY: Nirvana baby lawsuit: Spencer Elden's 'Nevermind' case dismissed