In the late 1980s, artist Michael Hayden created multiple sculptural works for Diva Futura, an Italian production company co-owned by former erotic performer Ilona Staller and her manager and producer Ricardo Schicchi.

Hayden created a serpent sculpture (later titled Il Serpente for Cicciolina) for Diva Futura in 1988. Il Serpente for Cicciolina is a large sculpture made of Styrofoam, glue, gauze, plaster, and paint that depicts a metallic-hued snake wrapped around a base of rocks. Diva Futura did not commission Hayden to produce Il Serpente for Cicciolina; rather, Hayden independently designed the sculpture with Diva Futura in mind as the only potential buyer. Diva Futura then purchased Il Serpente for Cicciolina for $900 in cash, with no formal contract being signed or drafted related to the sale. Hayden has not seen Staller, Schichhi, or Il Serpente for Cicciolina since the sale.

Shortly thereafter, artist Jeff Koons hired Staller to model alongside him in a series of erotic photographs. Koons traveled to Italy multiple times in 1989 and 1990 for photoshoots in Schicchi’s studio, using Staller’s own sets. Il Serpente for Cicciolina was both wholly and partially depicted in several of the resulting photographs that Schicchi took and provided to Koons. Koons later incorporated depictions of Il Serpente for Cicciolina in at least six different artworks that comprise his Made in Heaven series. Three of these works (collectively, the “Koons Works”) were at issue: the Made in Heaven billboard (1989); Jeff and Ilona (Made in Heaven) (1990); and Jeff in the Position of Adam (1990).

The Made in Heaven billboard debuted at the Whitney Museum of American Art in New York in 1989 and continued to be shown worldwide until 2015. Jeff and Ilona (Made in Heaven) was first displayed at the Venice Biennale in 1990 and various times elsewhere until its sale to a German museum, which exhibited it as recently as March 2020. The only edition of Jeff in the Position of Adam was sold to a private collector and was only shown publicly once in 2019. Although they had been publicly displayed in prominent museums and exhibits around the world over the course of over two decades, Hayden only became aware of the Koons Works’ existence in April 2019. Hayden subsequently applied to register Il Serpente for Cicciolina with the U.S. Copyright Office in August 2019 and received his Certificate of Registration in January 2020. Hayden then sued Koons for copyright infringement and moral rights violations in the Southern District of New York. The district court found that Hayden’s copyright infringement claims were time-barred, and that the protections of the Visual Artists Rights Act (“VARA”) do not apply to Il Serpente for Cicciolina.

First, the district court held that Hayden’s copyright infringement claims were barred by the statute of limitations of the Copyright Act, which states that one can only act on an infringement within three years of it occurring. The district court noted that the three-year timeline only kicks in when the rightsholder first finds out—or with due diligence should have known—about the infringement, which is an objective standard and fact-intensive inquiry. The district court accordingly found that a “reasonably diligent” person in Hayden’s position should have discovered the alleged infringement prior to 2019 because “it is reasonable to expect that someone who created sculptures and stage props specifically for a ‘household name’ like Staller and who consumed Italian news would hear of her involvement in a major, international art exhibition such as the Venice Biennale.” The district court also noted that Hayden was living in Italy when the Koons Works premiered in Venice in 1990 and also when, a few years later, Koons and Staller were embroiled in a divorce and child custody battle in Italian court—both of which were situations that received heavy publicity from Italian news outlets. The district court suggested that the latter facts cut against Hayden’s claims that he did not know who Koons was and that Koons had collaborated with Staller.

Second, the district court found that VARA does not apply to Il Serpente for Cicciolina because Hayden transferred his title—which was construed to mean title to the physical copy of the work and not title to any intellectual property rights—for it to Diva Futura during the initial sale in 1988. The district court also highlighted the lack of a formal contract that would even purport to preserve the plaintiff’s title, after which Hayden never saw Il Serpente for Cicciolina. The district court thus denied Hayden’s motion for summary judgment and granted Koons’ cross-motion for summary judgment dismissing the complaint.

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