Now 30, he said the infamous image had caused him “extreme and permanent emotional distress” as well as loss of wages and “enjoyment of life”.
Nirvana filed to dismiss last month, saying Elden’s arguments lacked merit.
“Elden’s claim that the photograph on the Nevermind album cover is ‘child pornography’ is, on its face, not serious,” their lawyers said, noting that anyone who owned a copy of the record would “on Elden’s theory [be] guilty of felony possession of child pornography”.
They continued by noting that, until recently, Elden had seemed to enjoy the notoriety of being the “Nirvana baby“.
“He has re-enacted the photograph in exchange for a fee, many times; he has had the album title… tattooed across his chest; he has appeared on a talk show wearing a self-parodying, nu-de-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 was filed by lawyers representing surviving Nirvana members Dave Grohl and Krist Novoselic; Kurt Cobain’s widow Courtney Love; and Kirk Weddle, the photographer of the cover image.
Regardless of the merits of Elden’s case, they argued, the statute of limitations on his claims had expired in 2011, meaning he was too late to sue.
His lawyers have argued that the statute of limitations does not apply, as long as Nevermind continues to be sold in its current form.
“Child pornography is a forever crime,” Marsh Law told Variety in a statement last year. “Any distribution of or profits earned from any se3ually explicit image of a child not only creates long standing liability but it also breeds lifelong trauma. This is common for all of our clients who are victims of actively traded child pornography, regardless of how long ago the image was created.”
Elden’s team had until 30 December to respond to Nirvana’s motion to dismiss, but missed the deadline.
As a result, Judge Fernando M Olguin dismissed the case “with leave to amend” – meaning his team have until 13 January to refile the case with appropriate changes.
In a statement to AFP on Tuesday, Elden’s lawyer Robert Lewis said they would do so “very soon.”
“We are confident that Spencer will be allowed to move forward with his case,” Lewis said.