A federal appeals court in New York has sided with Jeff Koons in a years-long legal dispute related to his controversial Made in Heaven series (1989-91), with a three-judge panel affirming a lower court’s February 2025 ruling dismissing artist Michael A. Hayden’s copyright-infringement claim. The Second Circuit judges’ ruling, released on Tuesday (21 July), sides with the US District Court’s ruling from last year, concurring that Hayden waited too long to file his claim.
The allegations revolve around a sculpture of a coiled snake that Hayden created for the Hungarian Italian politician and adult-film star Ilona Staller (aka Cicciolina). The sculpture appears in several of the Made in Heaven works, which Koons made in collaboration with Staller (the pair were subsequently married).
Though the earliest of the allegedly infringing Koons works dates from 1989, Hayden claimed in his lawsuit that he only became aware of them in 2019. That year he applied for copyright registration for his sculpture, Il Serpente for Cicciolina, with the US Copyright Office, which was granted in January 2020. He then contacted Koons’s lawyers in March 2020, claiming copyright infringement, among other allegations. In December 2021, he filed the present copyright-infringement lawsuit. In last year’s ruling, Judge Timothy M. Reif ruled that Hayden’s claim was time-barred and that he “should have discovered” the Koons works much sooner. At the time, Hayden’s lawyer said his client intended to appeal the decision.
The three-judge appeals court panel did not rule on the merits of Hayden’s copyright-infringement claim, but affirmed the lower court’s ruling that he should have discovered the alleged infringement before the three-year statute of limitations for bringing such claims had passed. Echoing Judge Reif, they suggested that since Hayden had lived in Italy for 20 years during the period between the Made in Heaven series’ debut and discovering the work in 2019, he should have been aware of the Koons works sooner—especially as, in this period, one of the works from the series was featured in the 1990 Venice Biennale, Koons became one of the world’s most famous contemporary artists and Staller was a widely-recognised public figure in Italy.
“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 authored the appellate panel’s decision. “At the same time, however, 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 30 years later.”
Hayden had also claimed copyright infringement under the Digital Millennium Copyright Act (DMCA), based on the more recent publication of the Made in Heaven series on Koons’s website. The DMCA makes it illegal to knowingly remove or alter copyright information in a manner that would enable infringing behaviour. The district court had originally dismissed this claim as time-barred, but Hayden argued that the works’ publication on Koons’s website constituted a distinct illegal action. The appellate court judges declined to take up this claim, finding that Hayden’s arguments “were neither properly preserved nor presented for appeal”.
Lawyers for Hayden and Koons had not responded to inquiries from The Art Newspaper as of press time.
The appeals court victory is hardly Koons’s first legal tussle. The same year that Hayden brought his case against the famed appropriation artist, Koons lost an appeal related to a plagiarism lawsuit in France. That dispute, in which Koons and the Centre Pompidou were co-defendants, involved a work from Koons’s Banality series, Fait D’Hiver (1988), which had been shown at the Paris museum. The suit was brought by the photographer Franck Davidovici, who took the photograph on which Koons based his porcelain sculpture for a 1985 advertising campaign for the fashion brand Naf Naf. Per the terms of that ruling, Koons was ordered to pay €190,000 in damages and the sculpture was barred from public display in France.
