Superstar artist Jeff Koons will face a copyright suit from sculptor Michael Hayden after a judge refused Koons’ request to dismiss the claim. Mr Hayden is a set and prop designer for film and live performances. In 1988 he made a piece depicting a giant serpent wrapped around a rock. The piece was made for and bought by Cicciolina, a former porn star and politician, who was Mr Koons’ muse and wife from 1991-1994. Koons and Cicciolina featured in a series of sexually explicit poses in Koon’s Made in Heaven series and photos of the pair became the source materials for the sculptures, photographs, and paintings in the series. Three works from that series, dating from 1989-1990 were identified by Hayden as infringing works, as Koons and Cicciolina are lying on the piece created by Hayden. Hayden contends that whilsthe sold the piece to Cicciolina and her manager, he retained copyright in the works.

Koons sought to dismiss the claim on the basis that the piece was a “useful article” which could not be copyrighted. Hayden countered that the fact it may be used in a functional manner does not mean it is not a copyright work. The judge refused Koons’ application to dismiss, as the court did not find that the work was not subject to copyright protection, holding that it was a sculptural work, nor could it be decided at this preliminary stage whether the use was fair use, with Koons’ bearing the burden of showing that any use was fair.

Hayden’s claim comes some 30 years after the works were made. He says he only became aware of the alleged infringement in 2019, despite the notoriety of Koons’ work. The judge granted Koons request to limit any damages in the claim to the three year period prior to the lawsuit.