Famed artist Jeff Koons is no stranger to litigation; indeed, it might be argued that his litigation history is part of his artistic legacy.  We’ve written before about his works, which frequently test the boundaries of copyright infringement and fair use (see here for one example) and his fabrication and sales practices which have also sparked dispute (see here).  Now Koons is back in court as a defendant in a federal lawsuit by sculptor Michael Hayden over his reproduction of a Hayden creations in one of his famous “Made In Heaven” artworks.  The case promises to raise many familiar but difficult questions about the extent to which artists can incorporate other creators’ work into their own.
 
The Allegations

According to his complaint, in the late 1980s, Mr. Hayden designed sets and props for films and performers, including Italian adult film star Ilona Staller (who performed under the name “Cicciolina”).  Around 1988, he created a “large, original sculptural work depicting a giant serpent wrapped around a rock pedestal,” and offered it for sale to Cicciolina’s manager and director “for use as a platform on which Cicciolina would perform.”  The work was purchased by her production company and kept at her manager’s studio in Rome. 
 
Hayden further alleges that, around 1989, Koons had several photo shoots at the studio, in which he was photographed with Cicciolina in sexually explicit positions, in preparation for a planned project.  (Koons and Staller married in 1991, and divorced in 1994.)  Ultimately, the photos became the basis for a series of Koons works called “Made in Heaven,” which was presented at the 1990 Venice Biennale.  At least three different pieces in the Made in Heaven series “reproduced the Hayden Work exactly, in whole or in part.”  According to Hayden, he had no idea that his work had been reproduced by Koons until about 2019. 
 
The Claims
 
In December 2021, Hayden sued Koons.  See Case No. 1:21-cv-10249-LGS (S.D.N.Y.).  Hayden asserts claims for (i) copyright infringement; (ii) publication and distribution of false copyright management information (see 17 U.S.C. § 1202(a)), based on Koons’s failure to identify Hayden as the copyright owner of his sculpture; and (iii) violation of his right of attribution under the Visual Artists Rights Act (VARA) (see 17 U.S.C. § 106A).  He seeks a variety of relief including monetary damages, recovery of his costs and attorney’s fees, and a court order directing Mr. Koons to, among other things, “publicly credit” Hayden in any references to the Made in Heaven series,  and contact anyone who owns, possesses, or plans to display the purportedly infringing works to inform them that because the works constitute infringement, they “may not be lawfully sold, transferred, or publicly displayed for commercial purposes.”  
 
The Motion to Dismiss
 
In February, Koons filed a motion to dismiss Hayden’s suit on multiple grounds. 
 
First, he argues that Hayden’s work was not copyrightable at all, but instead is properly categorized as a “useful article,” an article having a utilitarian function; such articles are not copyrightable if they have aesthetic or artistic features that cannot be identified separately from the article.  Here, Koons argues, the rock and serpent comprise the entire utilitarian platform, and Hayden’s copyright registration is for the whole platform and not any separate design element (such as the snake).
 
Second, Koons urges that he has only made “fair use” of Hayden’s work, analyzing each of the statutory fair use factors (see 17 U.S.C. § 107) and urging that “the transformative purpose and character of Koons’s artworks in this case” are apparent, where the Koons works juxtapose Hayden’s platform with other images to create artwork depicting a “contemporary Adam and Eve” as well as works blurring the lines between art. pornography, life, celebrity, and the media.  He also takes issue with Hayden’s complaint’s characterization of the sculpture as “unpublished” (which would generally cut against a finding of fair use), arguing that he “sold it to Staller’s studio for commercial use… in films and live performances” and generally gave up all control over who could view it. 
 
Koons also urges that Hayden’s VARA claim must be dismissed where the platform was created and sold before VARA went into effect in 1991.  And finally, Koons argues that any damages should be limited to the three years prior to Hayden’s filing of this lawsuit. 
 
Hayden’s response to the brief is expected to be submitted later this month, with Koons’s reply due in early April.  But Hayden’s complaint anticipates the fair use defense, and includes a section alleging that Koons did not make transformative use of the Hayden work, and indeed simply uses it for the exact purpose for which it was intended.
 
Analysis
 
As with many of the cases that have been brought against Koons over the years, the question of fair use looms large.  On paper, fair use is a relatively simple concept; a federal statute lays out four factors that a court should consider in deciding whether someone can invoke fair use as a defense to copyright infringement claims.  In practice, however, it's a complex concept that federal courts have been grappling with for a long time.  The Second Circuit in particular—i.e., the appellate court where this lawsuit may very well end up at some point—has issued some complex opinions on fair use in recent years.  Examples include its 2018 decision in the TVEyes case and its 2015 ruling in the Google Books, and, of course, its recent decision in the Goldsmith v. Warhol Foundation dispute, which prompted the Warhol Foundation to ask the Supreme Court to weigh in.  In dealing with Hayden’s lawsuit here, the Southern District of New York will likely need to address this recent case law, and will also need to decide whether the issue of fair use should be decided at this early stage, or whether it should wait until the parties have the benefit of discovery.
 
But this case also differs in some ways from previous lawsuits involving Koons works.  In several of his previous cases, he has been sued for copyright infringement for incorporating pre-existing images into his work.  For example, in Blanch v. Koons​, decided in 2006, his use of a photograph of legs was held to be protected fair use, where he used the image as part of a collage work featuring several pairs of legs.   In Rogers v. Koons, in 1992, he lost his fair use argument over a work that took a black and white photograph and turned it into a sculpture (with colors but otherwise minimally altered).  In those disputes, he used the pre-existing works as a primary focal point of his own work.  In Hayden’s suit, however, the sculpture at issue is not really the focal point of Koons's artworks -- the focus is on the people-- but the plaintiff's sculpture (the platform the people are on) is obviously incorporated.  It is in some ways reminiscent of copyright cases where a film or television show uses an artwork in the background of a scene without the artist’s permission, which can in some circumstances give rise to copyright liability.  The other major issue that is different here is the “useful article” question—unlike artwork hanging on a wall in the background of a movie scene, Hayden’s platform is at least arguably more like a piece of furniture or a chunk of the movie set.  This has not been the case with other Koons fair use lawsuits, which have involved appropriation of other artists’ photographs or other works that are indisputably copyrightable. 
 
Looking ahead, it will likely be at least a couple of months before the court rules on the motion to dismiss, and the case may, of course, settle.  But if it continues, the court may also need to deal with other issues, including whether there was some sort of implied license at play (indeed, it seems clear that Hayden intended for Cicciolina to perform on it, including possibly on camera), and if so, whether that license might arguably extend to Koons.  Hayden’s complaint anticipates such an argument, and urges that, while he sold the physical work to Cicciolina’s studio, he “did not grant any rights, implicitly or explicitly, that would permit a third party such as Mr. Koons, merely by virtue of encountering the Hayden Work in [the] studio, to freely exploit the Hayden Work for his own commercial gain.”  We’ll continue to watch this case as it moves into discovery (which will go forward despite the pending motion to dismiss).