Copyright claim deadline upheld in key ruling
The Second Circuit ruled that a copyright infringement lawsuit against artist Jeff Koons was filed too late, upholding a lower court’s dismissal on statute of limitations grounds.
Decades of publicity passed before the lawsuit emerged in 2021
Michael Hayden, a U.S. artist who lived in Italy from 1980 to 2007, created a Styrofoam sculpture of a serpent coiled around boulders in 1988. He sold it to Italian performer and politician Ilona Staller’s production company for about $900. No written agreement was signed, and the parties did not discuss copyright or third-party use.
Koons used the sculpture as a backdrop for his Made in Heaven series, which included three works: Made in Heaven (1989), Jeff and Ilona (Made in Heaven) (1990), and Jeff in the Position of Adam (1990). The series gained international attention, appearing in magazines and at the Venice Biennale. Publicity continued for years.
Hayden stated he did not learn of Koons’ use until 2019, when a business partner sent him an Italian article about unrelated litigation that included an image of one of the works. He registered the sculpture with the U.S. Copyright Office later that year and filed suit in December 2021, alleging copyright infringement, violations of the Digital Millennium Copyright Act, and false authorship under the Visual Artists Rights Act.
The district court dismissed the case, concluding Hayden’s claim was untimely. The Second Circuit affirmed the decision.
Courts examine when a copyright owner should have known
U.S. copyright law requires lawsuits to be filed within three years of when the claim “accrues.” In the Second Circuit, the clock starts when the copyright owner actually discovers the infringement—or when they should have discovered it with reasonable effort.
Hayden argued that constructive discovery required both inquiry notice and actual knowledge of facts suggesting probable infringement. The court rejected that standard, stating that while inquiry notice might indicate when a plaintiff should have begun investigating, it is not the only factor in determining constructive discovery. It also declined to require actual knowledge of triggering facts, as that would blur the distinction between actual and constructive discovery.
The key question, the court explained, is whether a reasonable copyright owner—acting with due diligence—would have uncovered the alleged infringement based on the circumstances.
In Hayden’s situation, the court highlighted several factors: his long residence in Italy during the period Koons’ work was exhibited at the Venice Biennale, his fluency in Italian, his consumption of Italian news, and his connections to Staller and the local art community. The court noted that Koons’ fame alone would not have been sufficient. However, combined with extensive press coverage, international exhibitions, and nearly 30 years of elapsed time, the evidence indicated Hayden should have known earlier.
Artists are not expected to monitor every news outlet or cultural trend. But copyright owners cannot ignore widely publicized uses and then sue decades later.
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A missed argument and implications for future cases
Hayden also attempted to preserve his DMCA claim by arguing that Koons’ display of the works on his website—with allegedly false copyright management information—represented separate acts that reset the clock. The Second Circuit did not consider the argument because Hayden had not properly raised it in the lower court.
These cases depend heavily on the specifics of each situation. Defendants seeking to dismiss claims on statute of limitations grounds must demonstrate more than just the fame of the accused work or the passage of time. They need to prove the plaintiff’s location, professional ties, media habits, and connections to relevant artistic or commercial circles.
For copyright owners, the decision serves as a warning that ignorance may not excuse a late-filed lawsuit. If circumstances suggest a reasonably diligent owner should have known, the clock may have started ticking long before the plaintiff actually discovered the infringement.
Courts have previously struggled with how far back the discovery rule should extend. In cases involving obscure or niche works, plaintiffs have sometimes succeeded in arguing that infringement was not reasonably discoverable until much later. When the alleged infringement involves high-profile artists and widespread publicity, the standard for what counts as “reasonable diligence” becomes stricter. The Second Circuit’s ruling reinforces that the rule does not allow unlimited delays.
The case is Hayden v. Koons, No. 25-498-cv (2d Cir. July 21, 2026).
