Hayden v. Koons

Second Circuit affirms summary judgment for artist Jeff Koons, holding that another artist’s copyright infringement claim over use of his sculpture in Koons’ “Made in Heaven” series was time-barred under discovery rule and that DMCA claim was neither preserved nor adequately presented on appeal.

Plaintiff Michael Hayden is an artist who worked in Italy in the 1980s designing sets and props for films and live performances featuring the famous Italian adult film star and parliamentarian Ilona Staller, known professionally as “Cicciolina.” In or around 1988, plaintiff created a large sculptural work depicting a giant serpent wrapped around a rock that was to be used as a bed-like structure on which Cicciolina could perform sexually explicit scenes. Cicciolina’s company, Diva Futura, agreed to purchase the sculpture, but plaintiff retained the copyright in and to it.

Contemporary artist Jeff Koons traveled to Italy in 1989 to be photographed with Cicciolina,  as a means of enhancing his visibility and recognition by associating himself with her. Koons subsequently used the photographs, which depicted him and Cicciolina in erotic positions atop plaintiff’s sculpture, in a series of works dubbed the “Made in Heaven” series. These works included a lithograph that was commissioned by the Whitney Museum of American Art and displayed as a billboard in downtown Manhattan, a wood sculpture featuring a three-dimensional replica of Koons and Cicciolina on plaintiff’s sculpture, and an oil on canvas titled “Jeff in the Position of Adam.” The series caused a stir upon its release and helped launch Koons into the upper echelons of the art world. The “Made in Heaven” works have been featured in museums and exhibits around the world, and Koons has allegedly earned substantial sums of money from them. Koons never credited plaintiff as the artist of the original sculpture, never sought plaintiff’s permission to use it and never paid plaintiff a license fee. The “Made in Heaven” works are displayed on Koons’ website and identify Koons as the author and copyright owner of the entirety of the works.

Hayden discovered one of the three “Made in Heaven” works in an Italian news article in 2019. He subsequently obtained a copyright registration for his sculpture and sued Koons in New York federal court for copyright infringement, publication of false copyright management information under the DMCA and violation of the right of attribution under the Visual Artists Rights Act (VARA). Koons moved to dismiss the complaint on the pleadings, which the district court denied. (Read our summary of the district court’s decision here.)

Following the close of discovery, Hayden and Koons filed cross-motions for summary judgment. The district court denied Hayden’s motion and granted Koons’ cross-motion and dismissed the complaint on statute-of-limitations grounds, concluding that Hayden’s copyright infringement claim was time-barred and that this rendered his DMCA claim moot. (Read our summary of the district court’s decision here.)

On appeal, Hayden raised two principal challenges: that the district court erred by dismissing his copyright infringement claim as time-barred and by dismissing his DMCA claim as moot. The Second Circuit affirmed the district court’s grant of summary judgment on the copyright claim. The court declined to consider Hayden’s argument that DMCA claims accrue independently of copyright infringement claims, holding that the argument was neither preserved in the court below nor adequately briefed on appeal.

The Second Circuit reiterated that a copyright claim must be brought “within three years after the claim accrued” and that the Second Circuit applies the “discovery rule,” under which a claim accrues only upon actual or constructive discovery of the infringement. The court explained that constructive discovery turns on both reasonableness and due diligence, requiring an assessment of whether the defendant identified sufficient facts or circumstances from which a reasonable copyright owner, exercising due diligence, should have discovered the infringement. The court rejected Hayden’s proposed heightened “inquiry notice” standard borrowed from securities fraud case law, explaining that inquiry notice and constructive discovery are not the same.

Because the parties did not dispute that Hayden lacked actual knowledge of the alleged infringement before 2019, the appeal turned on whether Hayden should have discovered the alleged infringement more than three years before he filed suit in December 2021. The Second Circuit agreed with the district court that Hayden’s claim was time-barred.

The court emphasized that Hayden had lived in Italy for nearly three decades, becoming fluent in Italian, closely following Italian news, and maintaining direct ties to Cicciolina and her production company through his work in the local art scene. Hayden’s time in Italy overlapped with the debut of Koons’ work at the Venice Biennale, which, by Hayden’s own admission, “caused a media sensation and scandal when it premiered.” The court noted that although this scandal occurred more than three decades ago, the “Made in Heaven” works continued to attract publicity and remain on exhibit at museums worldwide and, moreover, that Koons and Cicciolina, along with the artwork in which they were featured, drew significant, sustained international attention.

Weighing these facts together—Hayden’s decades in Italy, his consumption of Italian news, his direct ties to Staller and the Italian art world, and the international fame of both Koons and the artwork at issue—the court held that a reasonably diligent copyright holder should have learned of the alleged infringement sometime between 1989 or 1990 (when the works were created and debuted) and 2018 (three years before he filed suit)—rendering his copyright claim time-barred and warranting summary judgment for Koons.

Turning to the DMCA claim, the Second Circuit declined to consider Hayden’s argument that DMCA claims accrue separately from copyright infringement claims, holding that he had not adequately raised this argument before the district court. The court noted that Koons had argued repeatedly below that if Hayden’s copyright infringement claim failed, the DMCA claim would necessarily also fail, and that Hayden never asserted below—as he did on appeal—that DMCA claims accrue independently of infringement claims.

The court also found that, even if the argument had been preserved, it was not sufficiently presented for appeal. Although Hayden argued that the district court erred in dismissing his DMCA claim as moot, he did so only in a conclusory manner, without offering any legal analysis of the central, disputed question of whether DMCA claims accrue independently of copyright infringement claims. Accordingly, the Second Circuit declined to consider Hayden’s arguments on this issue and affirmed the district court’s judgment in full.

Summary prepared by Safia Gray Hussain and Alexander Loh