Hayden v. Koons

In copyright case alleging that artist Jeff Koons incorporated another artist’s sculpture in several works without permission, district court holds plaintiff’s claims are time-barred and discovery rule does not apply. 

Michael A. Hayden is an American artist who spent a significant portion of his career living and working in Italy. In the late 1980s, Hayden created several sculptural works for Diva Futura, an Italian production company owned partly by Ilona Staller, an erotic performer known professionally as “La Cicciolina.” In 1988, Hayden created a large sculptural work depicting a giant serpent wrapped around a pedestal of boulders for Staller to use as a platform upon which she could perform erotic acts. After Hayden sold the work to Staller, he had no further contact with her. No formal contract existed between Hayden and Diva Futura, Staller or her business partner for the creation or sale of the work.

Jeff Koons is a renowned “appropriation artist.” In 1989 and 1990, Koons hired Staller to be photographed with him in various sexually explicit positions using Staller’s own sets. One of those sets was the serpent pedestal, which was depicted, in whole or in part, in at least six different artworks. Of those six, three are relevant to the case: the “Made in Heaven” billboard, the “Jeff and Ilona (Made in Heaven)” sculpture and the “Jeff in the Position of Adam” painting. The first two of the Koons works garnered widespread press, with the “Made in Heaven” billboard appearing in Manhattan in 1989 and the sculpture premiering at the Venice Biennale in 1990. Despite the public attention and controversy surrounding their premieres, Hayden alleged he did not become aware of the Koons works until April 2019, when Hayden’s former business partner alerted Hayden to an Italian news article discussing the billboard. On Aug. 7, 2019, Hayden applied to register the serpent pedestal work with the U.S. Copyright Office (which issued a registration), and subsequently sued Koons for violations of the Copyright Act, Digital Millennium Copyright Act (DMCA) and Visual Artists Rights Act (VARA).

Prior to discovery in the case, Koons moved to dismiss Hayden’s complaint. In a 2022 ruling, the district court denied the motion to dismiss the Copyright Act claims on the grounds that (1) the serpent pedestal work was, contrary to Koons’ arguments, copyrightable, and (2) a “fair use” determination could not be made solely on the pleadings. The district court also reserved its decision on the VARA claims, finding that additional briefing was needed on whether VARA applied. The district court did, however, limit damages solely to the three-year window preceding the filing of Hayden’s complaint. (Read our summary of the district court’s decision here.)

Following the close of discovery, both Hayden and Koons moved for summary judgment, with Koons arguing that all of Hayden’s claims were barred by the three-year statute of limitations. The district court noted that while copyright infringement claims are subject to a three-year limitation period, the discovery rule provides that a copyright claim does not begin to accrue until the copyright holder discovers the infringement. In applying the discovery rule, courts must look to when the copyright holder, practicing reasonable due diligence, should have discovered the infringement as opposed to when the copyright holder did in fact discover the infringement.

While it was undisputed that Hayden did not learn about the existence of the Koons works until 2019, the district court concluded that Hayden could not rely on the discovery rule because a reasonably diligent person in Hayden’s position would have discovered the infringement either when “Jeff and Ilona (Made in Heaven)” premiered at the Venice Biennale or at some other point well before 2019. The court cited as particularly persuasive the following facts: (1) Hayden lived in Italy continuously from approximately 1987 until 2007, a period overlapping with the premiere of “Jeff and Ilona (Made in Heaven)” at the 1990 Venice Biennale; (2) Hayden spoke and understood fluent Italian; (3) Hayden and the person with whom he lived during that time regularly consumed Italian-language news and media; (4) Hayden was very familiar with Staller as a public figure, as well as through his own prior work for her; and (5) “Jeff and Ilona (Made in Heaven),” together with the other parts of the “Made in Heaven” series, caused a media sensation when it premiered. The district court accordingly granted Koons’ motion for summary judgment on the Copyright Act claims.

The district court next turned to Hayden’s VARA claims. VARA generally applies only to works created on or after June 1, 1991. It only applies to works created before June 1, 1991, if the author had not transferred title to the work prior to that date. It was undisputed that Hayden created the serpent pedestal work in 1988 and sold the physical work to Staller in 1988. Hayden argued that “title” referred to the ownership of intellectual property rights in a work as opposed to ownership of the physical copy of the work. But the district court held that VARA’s legislative history precluded such an interpretation of “title” and, therefore, the work was not protected by VARA. 

Finally, the district court granted plaintiff’s motion for summary judgment as to Hayden’s DMCA claims. In order to succeed on those claims, Hayden had to prove Koons intended to “induce, enable, facilitate or conceal” copyright infringement. Because the copyright infringement claims were time-barred, the DMCA claims were moot. 

Summary prepared by Melanie Howard and Edward Delman