Copyright-infringement lawsuit over Jeff Koons’s infamous Made in Heaven series is dismissed

Works from Jeff Koons’s 1989 series, Made in Heaven, shown here at a retrospective at the Guggenheim Bilbao in 2015 Ander Gillenea/AFP via Getty Images
A judge in US District Court in New York dismissed a lawsuit against Jeff Koons on Tuesday (25 February), ruling that the plaintiff had waited too long to claim copyright infringement over Koons’s infamous Made in Heaven series.
In 2021, the artist Michael A. Hayden sued Koons over three works in the Made in Heaven series dating from 1989 and 1991, in which Koons and the Hungarian Italian politician and adult-film star Ilona Staller (aka Cicciolina) are depicted in various sexually explicit poses and acts. Hayden claimed that the works constituted copyright infringement, because they all featured a sculpture he had created for Diva Futura, an adult-entertainment company co-owned by Staller.
In 1989 and 1990, Koons hired Staller—whom he subsequently married and then, in 1994, divorced, leading to an acrimonious custody dispute—for photo shoots that became the basis of the Made in Heaven series. In photos from those shoots, and several works from the series including the three at issue in Hayden’s suit, Koons and Staller appear on top of Hayden’s sculpture “depicting a giant serpent wrapped around a pedestal of boulders”, according to court documents. The Koons works at issue in the suit are the photographic billboard Made in Heaven (1989), the polychromed wood sculpture Jeff and Ilona (Made in Heaven) (1990) and the large-scale work on canvas Jeff in the Position of Adam (1990).
Crucially, Jeff and Ilona was featured in the Venice Biennale in 1990, when Hayden, who is a US citizen, was still living in Italy, where the work depicting Koons and a member of Italian parliament engaged in explicit acts “caused a media sensation and scandal when it premiered”, according to court documents. Nevertheless, Hayden only became aware of the Koons works featuring depictions of his serpent sculpture in 2019, when he came across an April 2019 article in La Repubblica about Staller’s dispute with the auction house Sotheby’s over its display of the Made in Heaven billboard work.
In August 2019, Hayden 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, alleging copyright infringement, among other allegations. In December 2021, he filed the present copyright-infringement lawsuit.
Judge Timothy M. Reif ruled this week that Hayden’s claim is time-barred, writing: “It would be a different matter altogether if [Hayden] did not reside in Italy during a 20-year period between 1988 and 2019 and had no reason to follow Staller’s career.” However, the judge found, Hayden “should have discovered” Koons’s work “well before he read the 2019 La Repubblica article”.
Jordan Fletcher, a lawyer representing Hayden, told Reuters that he and his client disagree with the judge’s decision and intended to appeal.
The same year that Hayden brought his case against Koons, the latter 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.
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