Artist Jeff Koons has once again prevailed in a legal challenge, as a New York federal appeals court affirmed that a copyright lawsuit filed against him by artist Michael Hayden was brought too late.
According to court documents filed yesterday in US District Court for the Southern District of New York, the lawsuit was dismissed for the second time on procedural grounds: Hayden waited until 2021 to file suit, which sought to assert copyright over a set piece Hayden had created that appears in a 1989 photograph from Koons’s notorious “Made in Heaven” series, which also included oil paintings and a billboard. The case centered on a Styrofoam sculpture of a coiled serpent created by Hayden for the Italian adult film star Ilona Staller (aka Cicciolina), then Koons’s collaborator (and later, wife).
Hayden registered the sculpture with the US Copyright Office in 2019, reportedly the year he learned of its appearance in the series, and sued Koons in 2021. The panel of three judges dismissed the case, writing in their opinion that the decision should not be taken to mean that Koons’s use of the sculpture did not constitute copyright infringement.
The court found that Hayden had ample opportunity to discover the alleged infringement before the three-year statute of limitations had passed, given that he had lived in Italy for decades and was fluent in Italian. “Made in Heaven” had made a controversial splash in the public eye and was widely covered in the Italian press, and the series has become a defining body of work in the famous artist’s oeuvre.
“We do not expect a reasonable copyright holder to scour the news, comb through the internet, or keep apprised of pop culture,” wrote Judge Denny Chin, who penned the decision for the panel. But, he added, “the discovery rule does not allow plaintiffs to bury their heads in the sand, ignore widespread international media coverage of allegedly infringing art, and then sue for potential infringement some thirty years later.”
Hayden argued his claim under the Digital Millennium Copyright Act, which makes it illegal to knowingly remove or alter information identifying a copyright owner to aid copyright infringement. The district court rejected the argument, ruling that Hayden’s underlying copyright claim was filed too late.
On appeal, Hayden also argued that the DMCA claim was independently valid because “Made in Heaven” works were published more recently on Koons’s website. But the Second Circuit declined to consider that argument, finding it underdeveloped and irrelevant to the statute of limitations for such claims.
The ruling is the latest in a decades-spanning history of copyright disputes surrounding Koons’s appropriation-based practice—not all of which have settled in his favor. In 2021, France’s highest court upheld a ruling that Koons’s 1988 sculpture Fait d’hiver, based on a 1985 advertisement by photographer Franck Davidovici, infringed the photographer’s copyright. The work was exhibited at the 2011 Venice Biennale and reproduced in the catalog for Koons’s 2014 retrospective at the Centre Pompidou in Paris, where Davidovici said he first discovered its existence.
The court ordered Koons; his company, Jeff Koons LLC; the Pompidou; and a book publisher to pay Davidovici $170,000 in damages. Koons’s company was also ordered to pay $12,500 for reproducing an image from the artist’s website, while the publisher was ordered to pay $2,300 for selling a book containing images of the work.
ARTnews has contacted representatives for Jeff Koons and Michael Hayden.
