After a four-year legal battle, famed artist Jeff Koons has defeated a copyright lawsuit by another artist whose artwork was incorporated into a 1990 Koons project; earlier this spring, a federal judge held that plaintiff had waited too long to sue and his claims were time-barred.  This latest dispute represents yet another chapter in Koons’ long history of navigating copyright issues—but it also serves as a reminder of the diligence required of copyright owners to be on alert for infringement in the market.
 
The Allegations and Claims
 
We have followed this matter since its inception (see here), and have previously written about other legal issues involving artworks by Koons (see here and here).  This latest lawsuit, filed by set designer Michael Hayden in 2021, claimed that Koons had appropriated a sculpture Hayden created in the 1980s.  See Hayden v. Koons, No. 1:21-cv-10249 (S.D.N.Y Dec. 2, 2021).  Hayden’s work—a pedestal made to look like boulders with a serpent twined around them—had originally been designed as a stage prop for adult performer Ilona Staller, known by her stage name “Cicciolina,” and was subsequently purchased by her production company.  Around 1989, Koons had explicit photo shoots at the studio with Staller (the pair later married), and the resulting images formed the basis of his “Made in Heaven” series, which premiered at the 1990 Venice Biennale. 
 
In his complaint, Hayden alleged that at least three works from “Made In Heaven” incorporated his sculpture without permission, acknowledgement, or compensation.  He further alleged that he did not learn about the purported infringement until 2019.  In 2020, Hayden applied for and was granted a copyright in his sculpture.  He asserted claims against Koons for (i) copyright infringement; (ii) publication and distribution of false copyright management information under the Digital Millennium Copyright Act (see 17 U.S.C. § 1202(a)), based on Koons’s failure to recognize 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).  In addition to seeking money damages, costs and attorneys’ fees, he asked for a court order requiring Koons to, among other actions, “publicly acknowledge” Hayden in connection with the series, and an order directing Koons to notify anyone who owns, possesses, or intends to display the infringing works that they cannot be commercially sold, transferred or publicly shown.
 
This February’s Summary Judgment Ruling
 
Back in 2022, the district court denied an early attempt by Koons to dismiss the case, holding, among other things, that Hayden’s sculpture was, contrary to Koons’ arguments, copyrightable.  The court also declined to rule on any “fair use” defense at that early stage.  
 
The parties proceeded through discovery, after which Hayden moved for summary judgment on all of his claims.  In his opposition and cross-motion for summary judgment, Koons argued, among other things, that his artworks make fair use of Hayden’s sculpture and that Hayden’s claims are barred by the statute of limitations.
 
After oral arguments in January, the court granted Koons’s cross-motion and dismissed the case.  The court’s primary ruling was that Hayden’s copyright infringement claims had come too late.  Copyright infringement claims are generally subject to a three-year statute of limitations, but that clock does not begin running until the copyright holder discovers—or with due diligence should have discovered—the infringement.  Here, the court held, a reasonably diligent person in Hayden’s position should have discovered the alleged infringement much earlier, considering that Hayden, who is fluent in Italian, resided in Italy for decades, including during the 1990 Venice Biennale, the media sensation sparked by “Made In Heaven,” and later rashes of publicity arising out of Koons and Staller’s marriage and the subsequent divorce and custody battle between them.  He was familiar with Staller both as a prominent public figure in Italy, and by virtue of the fact that he himself had had multiple transactions and dealings with her.  The court ruled that “it is unlikely that a reasonably diligent person in plaintiff’s position would hear of Staller’s involvement in the Biennale and then put it out of mind for nearly 30 years without looking deeper,” and that that was “especially true” of an artist who should be concerned with copyright.
 
Separately, the court also dismissed Hayden’s VARA claims, ruling that the statute did not apply to this work because Hayden had already transferred title to his physical sculpture before the effective date of VARA in 1991.  And the plaintiff’s DMCA claim was dismissed as moot because it was dependent on a copyright infringement claim that was time-barred.   
 
A Takeaway For Copyright Owners: Pay Attention
           
Often, when we write about appropriation artists like Jeff Koons, we discuss the tricky parameters of fair use that permit artists to make use of others’ work.  Indeed, this case at one point seemed poised to generate more fair use case law; in 2023, the court hearing Hayden’s claims stayed oral argument on these cross-motions for summary judgment pending the outcome of the U.S. Supreme Court’s decision in Warhol v. Goldsmith, and the parties later submitted additional briefing on how the Warhol decision might impact Koons’ invocation of the fair use defense.  See Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 143 S. Ct. 1258, 215 L. Ed. 2d 473 (2023) (and our earlier blog posts on that case, which can be found here, as well as here and here).  But ultimately, no ruling on the fair use question was necessary; the statute of limitations spelled the end of Hayden’s claims.
 
This decision instead is notable for its application of the concept of constructive discovery—the idea that a plaintiff will be deemed to have discovered an infringement at the point in time when a reasonably diligent person in the plaintiff’s position should have discovered it.  In holding that Hayden should have discovered that his work had been incorporated into “Made In Heaven” long before 2019, the court noted that Hayden was concededly well aware of Staller’s career and had had dealings with her studio.  But importantly, the court held that a reasonable person in Hayden’s position should have applied that knowledge in light of a series of high-profile events happening in the news, in the art community, and in Italian pop culture—and should have put two and two together much sooner.  This case shows that courts evaluating claims subject to a discovery rule (like copyright and even fraud claims) may expect a party to be aware of not just their immediate surroundings but also major high-profile stories, events, and scandals in the news—and may take a dim view of plaintiffs in art disputes who fail to pay attention to developments that might impact their rights.