Jeff Koons Faces Copyright Suit Over Use of Snake Sculpture in Made in Heaven Series

Michael Hayden, an American artist and set designer active in Italy during the late 1980s, has initiated legal action against renowned artist Jeff Koons, alleging unauthorized use of a snake sculpture in Koons's celebrated Made in Heaven series. Hayden's sculpture, a large serpent entwined around a rock pedestal, was originally created and sold to Italian adult film star Ilona Staller—known as "Cicciolina"—to serve as a stage prop for sexually explicit performances both live and on camera.

The dispute arose after Koons and Staller collaborated on a series of photographs in 1989, shot in Staller's Rome studio, depicting intimate scenes atop Hayden's serpent sculpture. Koons subsequently incorporated these images into three artworks—a billboard, a canvas, and a sculpture—that became part of his Made in Heaven collection. Hayden alleges he only became aware of Koons's use of his sculpture in 2019, upon reading about a lawsuit involving Staller and Sotheby's that featured one of Koons's works depicting the serpent.

Following this discovery, Hayden secured a copyright registration for his sculpture under the title Il Serpente for Cicciolina and filed suit in the Southern District of New York. His complaint asserts claims of copyright infringement and violation of the Visual Artists Rights Act (VARA), seeking damages and injunctive relief.

Jeff Koons responded with a motion to dismiss, advancing two primary defenses. First, Koons contends that Hayden's sculpture should be classified as a "useful article"—a prop or platform with an intrinsic utilitarian function—thus falling outside the scope of copyright protection under 17 U.S.C. § 101. Koons emphasizes that the sculpture was designed specifically as a stage for Staller's performances, and argues that the sculptural elements, such as the intertwined serpent and rock, are inseparable from the utilitarian aspects.

Second, Koons asserts that even if the sculpture qualifies for copyright protection, his use constitutes a transformative fair use under the Copyright Act. Drawing on the Second Circuit's guidance in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d Cir. 2021), Koons compares his use of Hayden's sculpture to prior cases involving his own works, notably distinguishing his current use as transformative akin to Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), rather than the non-transformative use in Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).

Koons argues that in the Made in Heaven artworks, Hayden's sculpture is neither the dominant component nor readily recognizable. He highlights alterations such as vibrant coloration and contextual shifts that reimagine the serpent as a dynamic figure within a Garden of Eden motif, juxtaposed with Koons and Staller as Adam and Eve. Koons further contends that the series blurs boundaries between art, pornography, celebrity, and mass culture, reinforcing its transformative character.

Regarding the other statutory fair use factors, Koons maintains that the nature of Hayden's work as a utilitarian and published platform favors fair use. He also asserts that the amount copied was reasonable relative to the transformative purpose, and that Hayden has failed to demonstrate any market harm resulting from Koons's use. Koons emphasizes the public interest in permitting such artistic expression.

Anticipating Koons's fair use defense, Hayden's complaint previews counterarguments challenging the classification of his sculpture as a useful article and disputing the transformative nature of Koons's works. The litigation is poised to address complex issues at the intersection of copyright law, artistic expression, and the protection of sculptural works serving dual artistic and utilitarian functions.

The Southern District of New York will now consider Koons's motion to dismiss, which raises significant questions about the scope of copyright protection for sculptural props and the boundaries of transformative fair use in visual arts.