A judge has dismissed a lawsuit filed against Nirvana by Spencer Elden, who alleged that he had been the victim of sexual exploitation after he appeared naked as a baby on the cover of the band’s 1991 album, Nevermind.

Elden, now 30, sued the Smells Like Teen Spirit hit-makers last year, claiming that the artwork constituted child sexual abuse and that the now infamous image had caused him “extreme and permanent emotional distress” as well as loss of wages and “enjoyment of life”.

Lawyers representing surviving Nirvana members Dave Grohl and Krist Novoselic, along with Kurt Cobain’s widow Courtney Love and Kirk Weddle, the photographer of the cover image, filed to dismiss last month, saying Elden’s arguments lacked merit and that he had “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’”, including recreating the photo for money and having “Nevermind” tattooed on his chest.

Elden’s team had until December 30 to respond to Nirvana’s motion to dismiss, but missed the deadline, resulting in a California judge dismissing the case “with leave to amend” - meaning his team have until January 13 to refile the case with appropriate changes.

It appears to be far from over however, with Elden’s lawyer Robert Lewis claiming that they would do so “very soon.”

“We are confident that Spencer will be allowed to move forward with his case,” Lewis said in a statement to AFP on Tuesday.