Hayden v. Koons

Background

Michael A. Hayden alleged that he created an original sculpture in approximately 1988 depicting a giant serpent wrapped around a rock. According to the complaint, Diva Futura agreed to acquire the sculpture, but Hayden retained the copyrights and did not assign authorship, copyright ownership, or sublicensing rights.

The complaint alleged that Jeff Koons later used the sculpture in three works in his Made in Heaven series: a 1989 lithograph, a 1990 polychromed wood sculpture, and a 1990 oil painting. Hayden alleged that the works were exhibited and sold, that Koons did not obtain permission or credit Hayden, and that Koons identified himself as the author and copyright owner of the entirety of the works. Hayden alleged claims under the Copyright Act, the Digital Millennium Copyright Act, and the Visual Artists Rights Act.

Koons moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint plausibly states a legal claim. Alternatively, he asked the court to rule that damages could be recovered only for the three years before the complaint was filed.

Copyright Validity

The court held that the complaint plausibly alleged a valid copyright registration. It analyzed the sculpture as a sculptural work rather than a “useful article,” meaning an object with an intrinsic practical function. The sculpture’s possible use as a platform did not control because the author’s intended use was not dispositive. The court also stated that, even if the sculpture were treated as a useful article, its serpentine features could be separately identified from the rock base and could exist as their own sculptural work. The complaint therefore sufficiently pleaded a copyright claim.

Because the complaint adequately alleged copyright validity, the court did not address Koons’s related arguments concerning the Digital Millennium Copyright Act and Visual Artists Rights Act claims at that stage.

Fair Use

The court declined to decide Koons’s fair-use defense on the motion to dismiss. Fair use is an affirmative defense, meaning Koons bore the ultimate burden of proving it. The court explained that fair use ordinarily requires a fact-sensitive evaluation of four factors: the purpose and character of the use, the nature of the copyrighted work, the amount used, and the effect on the potential market.

The court found that at least two factors required information beyond the complaint. The sculpture’s creative nature weighed against fair use, but additional information was needed to assess whether and to what extent the work had been published and what rights Hayden retained. The court also could not determine the effect on the market without more information about whether the market for Hayden’s sculpture and the market for Koons’s works meaningfully overlapped.

Visual Artists Rights Act Claim

The court reserved decision on the meaning of “title” under the Visual Artists Rights Act’s retroactivity provision. The sculpture was created before the statute’s effective date, and the parties disputed whether title had passed before that date. The court requested additional briefing at the summary-judgment stage and noted that neither party had identified controlling authority resolving the issue or addressed whether state or foreign law governed the transfer and scope of title.

Damages Limitation

The court granted Koons’s motion to limit damages to the three-year period before the lawsuit began. It relied on Second Circuit precedent holding that the Copyright Act limits a successful plaintiff’s retrospective recovery to that period. The court stated that it was bound by that precedent even though Hayden identified decisions from outside the Second Circuit that rejected it.

Disposition

The court denied Koons’s motion to dismiss and granted Koons’s motion limiting damages to the three-year period before the commencement of the action. The clerk was directed to close the motion at Docket No. 23.