A judge dismissed the lawsuit against the surviving members of Nirvana over the cover of their 1991 LP Nevermind.

Last year, the plaintiff, Spencer Elden – the naked baby on the front of the album – sued several companies and individuals associated with the release of the LP, including Dave Grohl, Krist Novoselic, Kurt Cobain’s widow Courtney Love. The latter serves as executor of the Cobain estate. The lawsuit claimed the photo image was used and obtained without Elden’s consent and the nudity in the picture constitutes child abuse.

Two weeks ago, the attorneys for the defendants, including photographer Kirk Weddle, Art director Robert Fisher and a variety of companies: MCA Records, UMG Recordings, Inc., Universal Music Group, Inc., The David Geffen Company and Geffen Records, jointly sought a dismissal of the lawsuit, stating Elden had “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’” and the suit was effectively time-barred.

On Monday night, Judge Fernando M. Olguin, who was presiding over the case at the U.S. District Court in California, dismissed the case after Elden missed the deadline to file an opposition to the defendants’ motion to dismiss the case. The deadline was Dec. 30.

The dismissal was made with “leave to amend,” which means although the suit has been dismissed, Elden has a second chance to refile a new complaint so long as it makes good the “defects” alleged in the defendants’ motion to dismiss.

Elden has until Jan. 13 to refile the suit; after that, the matter will be considered officially closed.

The ruling stated: “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.”

If Elden misses the new deadline of Jan. 13. the suit will be dismissed “without prejudice,” and the matter will be considered closed.