A few weeks ago, “Nevermind” baby Spencer Elden’s lawsuit against Nirvana was dismissed by the California District Court. Nirvana’s legal team argued that Elden’s lawsuit lacked argument and he is too late to sue because of a statute of limitations. 

Elden’s legal team had until 30 December 2021 to file an opposition to the Nirvana estate’s request, but they missed the deadline. As a result, judge Fernando M Olguin dismissed the lawsuit “with leave to amend”. This means Elden could still refile his lawsuit and respond to Nirvana’s legal team regarding the statute of limitations, in which he did. 

The new lawsuit includes a declaration from the album’s art director Robert Fisher. He was named as co-defendant in the original lawsuit, but was removed from the suit on 22 December. Fisher’s statement includes an early mock-up of the artwork, using a stock image of a different swimming baby, whose genitalia are not exposed.

Fisher pointed out that he advised the band and their record label that Elden's genitalia could be digitally removed from the photograph that ended up being used.

The new lawsuit suggests the band and record label, Geffen Records, deliberately sought to display baby Elden’s penis and exploit the image for commercial gain.

The defendants have until 27 January to reply to Elden's new complaint.