Jeff Koons Keeps Making Copyrght Law

If bad facts make bad law, what kind of copyright law does Jeff Koons make? The answer is pretty good. Sometimes he wins, sometimes he loses.  Yesterday he won in Hayden v. Koons, 2025 WL 605009, in an opinion by Judge Reif of the International Court of Trade, sitting by designation. Koons won on statute of limitations grounds, and because the work at issue was not covered by the Visual Artists Works Act (VARA). More on that below.

Koons’ most famous loss was the 1992 Rogers v. Koons. 960 F.2d 301 (2d Cir.).  I know that case well because the photographer plaintiff Art Rogers was from Point Reyes, Marin County California,  my home county and where my soul resides if I have one. When I was copyright counsel to the House of Representatives, we held a hearing on statutory damages. I had Art testify. Due to Koons’ contempt of court for sending one of the unsold copies of his work overseas, I was able to re-route its return from Germany to our hearing, where along with Art it was the star witness. I was surprised at how enormous it was, and how there were elements of it that could be considered transformative.

Here is a side by side of the works:

The court of appeals was not impressed with an transformative aspect, writing: 

[T]he essence of Rogers' photograph was copied nearly in toto, much more than would have been necessary even if the sculpture had been a parody of plaintiff's work. In short, it is not really the parody flag that appellants are sailing under, but rather the flag of piracy. Moreover, because we have already determined that "String of Puppies" is not a parody of Rogers' work, appellants cannot avail themselves of this heightened tolerance under a parody defense. 

Fourteen years later, though, Koons won before the Second Circuit on fair use in Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006).   Unlike in Rogers, Koons did not copy the work in toto, but rather in part, for a collage. As the court of appeals wrote:

Koons culled images from advertisements or his own photographs, scanned them into a computer, and digitally superimposed the scanned images against backgrounds of pastoral landscapes. He then printed color images of the resulting collages for his assistants to use as templates for applying paint to billboard-sized, 10′ × 14′ canvasses. 

One of …  paintings, “Niagara,” is the subject of this action., “Niagara” consists of fragmentary images collaged against the backdrop of a landscape. The painting depicts four pairs of women's feet and lower legs dangling prominently over images of confections—a large chocolate fudge brownie topped with ice cream, a tray of donuts, and a tray of apple danish pastries—with a grassy field and Niagara Falls in the background. The images of the legs are placed side by side, each pair pointing vertically downward and extending from the top of the painting approximately two-thirds of the way to the bottom. …

… By juxtaposing women's legs against a backdrop of food and landscape, Koon says, he intended to “comment on the ways in which some of our most basic appetites—for food, play, and sex—are mediated by popular images. “By re-contextualizing these fragments as I do, I try to compel the viewer to break out of the conventional way of experiencing a particular appetite as mediated by mass media.” 

The copyrighted work, called “Silk Sandals,” appeared in “Allure” magazine. It 

“depicts a woman's lower legs and feet, adorned with bronze nail polish and glittery Gucci sandals, resting on a man's lap in what appears to be a first-class airplane cabin. The legs and feet are shot at close range and dominate the photograph. “

Here is black and white image of it from the court’s opinion:

Here is a black and white image of Koon’s collage, also from the opinion:

Koons’ purpose was found to be “sharply different” from Blanch’s , and a form of social commentary. On the third factor he took no more than was necessary for his purpose, and didn’t take the expressive heart. No market harm was claimed. For all those who belly-ached about the Second Circuit allegedly becoming art critics in the Rogers case, the Blanch case shows that is not true. 

Yesterday’s case dealt with Koons’ most infamous show, “Made in Heaven.” Here is a link to information and images from the show. Because this is a family friendly blog, readers are forewarned there are X rated images at the link, many of them. I went to the exhibition when it was in Manhattan. It was disgustingly vain and vulgar to my sensitive tastes. It depicted Koons, airbrushed, in many sexual situations with his then wife Ilona Staller, a/ka/ Ciccolina,  Here is the first paragraph about her from Wikipedia:

Ilona Anna Staller (born 26 November 1951), known by her stage name Cicciolina, is a Hungarian-Italian former porn star, politician, and singer. Staller gained fame in the early 1970s through her radio show Voulez-vous coucher avec moi? and became widely recognized by her stage name Cicciolina. She appeared in numerous films and gained attention for being the first to bare her breasts on live Italian television in 1978. Staller ventured into politics and was elected to the Italian Parliament in 1987, campaigning on a libertarian platform with the Radical Party.

Throughout her career, Staller made provocative offers, such as offering to have sex with Saddam Hussein and Osama bin Laden in exchange for peace.

Staller and Koons married in 1991, had a child the next year, Koons filed for divorce shortly thereafter and was divorced in 1994. Their custody battle over their son whom Staller had taken to Italy in violation of a court order was well beyond prurient. All this is relevant to yesterday’s decision.

Plaintiff Michael Hayden is an American prop and set designer, who lived in Italy and was hired by Staller’s company to create sculptures for her live acts. One of them depicted a giant serpent wrapped around a pedestal of boulders. This work was then incorporated by Koons into different works for the Made in Heaven exhibition, including an advertising billboard measuring 10 by 22 feet. It is that exhibit that was an issue in yesterday’s opinion.

Plaintiff claimed he did not authorize use of his work by Koons and did not have actual knowledge of Koons' work copying his until April 2019, which Koons conceded. .Plaintiff sued in December 2021, well outside of the limitations period for the injury approach to the statute of limitations but not necessarily for the discovery approach. Koons asserted the statute of limitations barred the action because Plaintiff should reasonably have known about the alleged infringement as early as 1990, when it was displayed in Venice to great scandal. 

After the Venice show, Plaintiff continued to be in contact with Staller and to read about her marriage to Koons and custody battle which occurred during worldwide exhibitions of the work. Even with the discovery rather than injury approach to the statute of limitations, the court held that the worldwide publicity about the show and Plaintiff’s association with Staller was sufficient to put him on “inquiry notice” sufficient enough that a reasonably diligent person would have discovered the infringement. The opinion should give some solace to those awaiting the Supreme Court’s adoption of the injury approach.

On the VARA claim, there was an interesting twist. The work was created before VARA was enacted. But there is a “retroactive” provision in Section 106A(d)(2):

With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.

The key word here is “title.” Plaintiff had sold the physical  object, but not the copyright.. There was an earlier opinion in the case, from July 18, 2022, by Judge Lorna Schofield, 2022 WL 2819364. That opinion denied Koons’ 12(b)(6) motion on fair use. On the VARA claim Judge Schofield explored the legislative history which showed a switch from “copyright” to “title’:

Plaintiff relies on a previous version of the statute, which used the term “copyright” instead of “title.” H.R. Rep. 101-514, as reprinted in 1990 U.S.C.C.A.N. 6915, 6928 (1990). Ultimately, the Senate's proposed amendment, which substituted “title” for “copyright,” was approved and incorporated into the final version of the statute. Plaintiff offers no explanation for why such a change, which appears to have been connected to concerns about the taking clause, should not be regarded as legislative intent in Defendant's favor. See 136 Cong. Rec. H13314 (1990), at 36948 (Rep. Kastenmeier noting that the “amendment in fact avoids taking clause arguments, and in this respect is salutary.”).

Yesterday’s decision agreed with my treatise:

This Court has recognized previously that a previous draft of VARA used the term “copyright” in place of “title.” 

In light of the [legislative history] and the fact that the statute does not define “title,” see 17 U.S.C. § 101, the court will proceed with the understanding that “ ‘title’ refers to title to the physical copy of the work of visual art at issue, and not to title to any intellectual property rights.” 5 Patry on Copyright § 16:47. Accordingly, VARA will cover the Original Work only if plaintiff did not transfer title to the physical copy of the Original Work before the effective date.

Plaintiff argued in vain that selling the physical object was not selling title to the physical object, an argument the court understandably rejected. As a result, the work was held to fall outside VARA. Clean sweep Koons, with the court also denying a motion for reconsideration.