According to Variety, the lawsuit filed against the surviving members of NIRVANA as well as the estate of Kurt Cobain by the man who claims he was the baby featured on the cover of the band’s “Nevermind” album, has been dismissed.

Last August, Spencer Elden filed the lawsuit, alleging the photo of the baby reaching for a dollar in a swimming pool violated federal child pornography statutes and arguing child sexual exploitation. He also claimed the image on the cover was taken and used without his consent.

On Monday (January 3), Judge Fernando M. Olguin, who was presiding over the case at the U.S. District Court in Central California, dismissed the case after Elden missed his December 30 deadline to file an opposition to the defendants’ motion to dismiss. The dismissal was made “with leave to amend,” meaning Elden will have one more chance to issue a second amended complaint with a new deadline of January 13. If he doesn’t, the suit will be dismissed without prejudice (which means another suit could be filed in the future). If Elden does refile by January 13, the defendants’ lawyers will have a further two weeks to file a reply to the new suit.

“Plaintiff is cautioned that failure to timely file a Second Amended Complaint shall result in this action being dismissed without prejudice for failure to prosecute and/or failure to comply with a court order,” the ruling stated.

In last month’s motion to dismiss, NIRVANA, as well as Kurt Cobain‘s widow, Courtney Love, had asked the court to throw out the lawsuit, saying Elden‘s claim that the photograph on the “Nevermind” cover is child pornography is “not serious” and insisting that his claim is “barred by the applicable statute of limitations.” Federal child pornography law has a 10-year statute of limitations, beginning when a victim “reasonably discovers” the violation itself or the harm caused by it.

“Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’,” read the motion which was filed on December 22. “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 motion added: “Elden‘s claim that the photograph on the ‘Nevermind’ album cover is ‘child pornography’ is, on its face, not serious. A brief examination of the photograph, or Elden‘s own conduct (not to mention the photograph’s presence in the homes of millions of Americans who, on Elden‘s theory, are guilty of felony possession of child pornography) makes that clear.

“The ‘Nevermind’ cover photograph was taken in 1991. It was world-famous by no later than 1992. Long before 2011, as Elden has pled, Elden knew about the photograph, and knew that he (and not someone else) was the baby in the photograph. He has been fully aware of the facts of both the supposed ‘violation’ and ‘injury’ for decades.”

The motion went on to say: “In addition to his child pornography claim, Elden has alleged that the creation of the photograph for the album cover art entailed the sex trafficking of Elden when he was a baby. Setting aside that this premise is absurd, the statute Elden invokes to cover conduct in 1991, became effective on December 19, 2003 and has no retroactive application to conduct by a defendant that pre-dates its effective date.”

Late last year, Elden amended his lawsuit against NIRVANA to include the allegation that the photographer hired to take the photo, Kirk Weddle, also shot images of Elden styled to look like Playboy founder Hugh Hefner. The new filing also drops former NIRVANA drummer Chad Channing as a defendant in the case.