Jeff Koons Accused Of Copyright Infringement For Unauthorized Use Of A Snake Sculpture In Three Iconic Works

• Published date: 16 February 2022
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Media & Entertainment Law
• Law Firm: Frankfurt Kurnit Klein & Selz
• Author: Mr Brian Murphy

Plaintiff Michael Hayden is an American who, in the late 1980s, was living la dolce vita in Italy, working as an artist and set designer. Among his gigs was designing sets and props for films featuring Italian adult film star (and future member of the Italian Parliament) Ilona Staller, better known as "Cicciolina." Knowing that Staller was (as he puts it) "fond of snakes," Hayden created and then sold to Staller's company (as he describes it) "a large sculptural work depicting a giant serpent wrapped around a rock pedestal." Hayden alleges in his complaint that the "intended purpose of [his sculpture] was to serve as a work of fine art on which Cicciolina could perform sexually explicit scenes, both live and on camera." Not the sort of product description you see on artsy.net or dwr.com. (You can see Hayden's sculpture here.)

Defendant Jeff Koons is a world-famous artist who has been on the receiving end of several copyright lawsuits over the years (including those covered in this post and this one). In 1989, Koons and Staller appeared together in a series of photographs that were shot in Staller's studio in Rome. In some of the photos, the couple appears to be in the throes of intimate congregation atop Hayden's sculpture. Koons used those photos to create a billboard, canvas and sculpture that ultimately were included in Koons's series titled Made in Heaven. The three works at issue (with links) are:

1. Made in Heaven (1989) (lithograph billboard)
2. Jeff and Ilona (Made in Heaven) (1990) (a polychromed wood sculpture)
3. Jeff in the Position of Adam (1990) (oil inks on canvas)

Hayden claims he was unaware of Koons's series until 2019, when he read an article about a lawsuit filed by Staller against Sotheby's that included a photograph of one of the challenged works. After obtaining a copyright registration for his sculpture, under the title Il Serpente for Cicciolina. Hayden sued Koons in the Southern District of New York, alleging, among other things, copyright infringement and violation of the right of attribution under the Visual Artists Right Act ("VARA"). Hayden seeks damages and various flavors of injunctive relief.

Earlier this month, Koons moved to dismiss the complaint. In his brief, Koons makes two principal arguments.

Is a Snake Sculpture, Designed as a Platform for Adult Film Antics, a Useful Object?

First, Koons argues that the sculpture should be categorized as a useful object that has no claim to protection under copyright law. In his...