Spencer Elden, best known as the baby on the cover of Nirvana’s 1991 album Nevermind has been unsuccessful in his attempts to sue the band on the grounds that the artwork constitutes child porn.

Billboard reports that the case has been dismissed with judge Fernando M. Olguin ruling in U.S. District Court that the case was past the 10 year time period of the statute of limitations. Elden is able to appeal the decision.

Elden, now 31, first took legal action against the band for child exploitation in 2021 He also named photographer Kirk Weddle and Nirvana’s label in the suit, which was dismissed on the same statute of limitations ruling. He then re-filed the suit in January 2022