A judge has tossed a lawsuit alleging the image of a naked baby on the cover of Nirvana’s hit album Nevermind was a product of child sexual abuse. The lawsuit, filed by Spencer Elden, the man who appeared as a baby in the photo, claimed the band had engaged in child sexual exploitation by using the image. Elden said he had suffered “extreme and permanent emotional distress with physical manifestations” as a result of his likeness being used. But after lawyers for Nirvana’s estate filed a motion to dismiss the lawsuit, Elden’s lawyers failed to respond on time, leading to Judge Fernando Olguin dismissing the case Monday “with leave to amend.” Elden will now have until Jan. 13 to refile and reverse the dismissal.