11 Feb ARTIST JEFF KOONS ASKS US COURT TO DISMISS PORN PROP COPYRIGHT CLAIM

American pop culture artist Jeff Koons, perhaps most famous for creating balloon animals from stainless steel, is currently being sued in New York over a series of photographs which featured a serpentine platform built by the prop designer, Michael Hayden.

The platform, described in court filings as a ‘somber monochromatic three-dimensional serpent wrapped around a rock’, was created in 1988 for, and purchased by, Italian adult performer and Italian MP Ilona Staller (stage name Cicciolina). Snake-fan Cicciolina kept the platform in her home, and it is said that Hayden hoped she would use the platform to ‘perform sexually explicit scenes, both live and on camera’.

Shortly after the sale, Koons was hired by the Whitney Museum in New York to create a billboard, for which he photographed Staller on various sets in her Rome studio. Some of these erotic photographs were taken on Hayden’s platform and were used both for the billboard and a series entitled ‘Made in Heaven’. Some of the images were doctored by Koons to change certain features of the platform, such as the colour of the serpent, and in others it appears obscured by Ciccolina and Koons who are said to be ‘cavorting’ atop it.

Hayden did not give permission for his platform to be used in the series and only recently discovered three of the photographs in an Italian publication. He has since brought an action for copyright infringement and claims that these images caused a ‘media sensation’ and ‘scandal’ when it premiered.

In a motion filed last week, Koons asked the court to dismiss the claims, on the basis that the work was not entitled to copyright protection, as it was a ‘useful article’ with an ‘intrinsically utilitarian function’, despite its artistic elements.

Alternatively, he argued that he was making fair use of the sculpture, which was not the ‘major or dominant component’ of any of the three photographs.

He also claimed that his photographs did not serve as a competitive substitute for any market work, which Hayden has failed to exploit in 33 years.

Hayden’s attorney, Jordan Fletcher of Fletcher Law, told Reuters that Hayden disagrees with Koon’s motion and looks forward to presenting their arguments to the court.

Questions as to whether copyright exists in three-dimensional objects do from time to time arise. The question, both in the US and UK courts, often turns on whether the work can properly be described as a work of art worthy of copyright protection, or whether the object is really utilitarian in nature, rather than artistic. The case, should it reach trial, may give some further helpful indications as what does and does not constitute an artistic work worthy of copyright protection. zoom-in will report on developments.