Spencer Elden has long celebrated her claim to fame as the baby depicted on the front of Nirvanathe classic album No matter. Elden sold autographed copies of the album, recreated the photograph twice as an adult, and even has the word “Nevermind” tattooed on his chest.

So last year eyebrows were raised when he filed a lawsuit against Nirvana, photographer Kirk Weddle and several record labels alleging that the album cover had not only caused him “permanent damage” and a “lifetime loss of ability to generate income”, but which amounts to child pornography as he was unable to consent to the taking and use of the image. As compensation, he was asking for $130,000 in damages.

Now, US District Judge Fernando Olguin has issued an eight-page ruling dismissing the refiled case with prejudice, ruling that Elden’s case was filed well past the statute of limitations. 10 years. This is the second time the case has been dismissed, as in January of this year, Elden missed the deadline to respond to the defendant’s request for dismissal.

But Elden and his attorney Margaret Mabie are not giving up. In a statement to Rolling StoneMabie said they would appeal and that:

This ruling’s interpretation of the Masha’s Law statute of limitations contravenes more than fifteen years of well-established precedent and the legislature’s intended purpose of the law. Under this reading of the law, child pornography remedies vaporize once the victim in the smuggled image turns 28. Under this logic, any producer of child pornography, like Masha Allen’s original abuser, could simply wait for time to pass and then redistribute abusive material with impunity.”

She continued:

“The No matter The cover was created when Spencer was a baby and it is impossible for her to grow old and outgrow this victimization while her image remains in distribution.”

But these claims that the cover of No matter This child pornography was succinctly criticized by the defendant’s motion to dismiss, which described Elden’s attorney’s arguments as “not serious” and said:

“A brief examination of the photograph, or of Elden’s own conduct (not to mention the presence of the photograph in the homes of millions of Americans who Elden theorizes are guilty of felony possession of child pornography) clarify”.

More on this as we heard it.