Sculptor to sue Jeff Koons for breaching copyright after his piece was incorporated into other works

Artist Jeff Koons has been accused of violating copyright for his infamous ‘Made in Heaven’ series, with a federal judge awarding the original sculptor the right to sue.

Michael Hayden claims the mega-artist flouted their copyright agreement by repurposing his original sculpture of a giant snake coiled around a rock, after selling it to Koons ex-wife porn star Cicciolina.

He sold the sculpture as an artwork to Diva Futura, a company owned by Cicciolina, real name Ilona Staller, in 1988 for an undisclosed sum.

Court papers claim that Koons had permission to incorporate the giant serpent into artworks for his iconic ‘Made in Heaven’ series.

It caused a worldwide reaction when the explicit series first went on display at Koons’ then gallery, Sonnabend, with Hayden only obtaining copyright in 2020.

But Hayden’s lawyers say that he only had permission to ‘perform sexually explicit scenes, both live and on camera’, rather than recreating the images.

They have identified three images as ‘infringing works’ – including a 1989 lithograph that was initially commissioned by the Whitney Museum of American Art which was put on a billboard in downtown New York City.

The second is a Koons oil painting titled ‘Jeff in the Position of Adam’, made in 1990.

It also claims that a wooden sculpture, called ‘Jeff and Ilona’, created in 1990 as part of ‘Made in Heaven’ is a 3D replica of Hayden’s sculpture.

Sculptor Michael Hayden claims that he did not give copyright of his snake sculpture over to Jeff Koons and his then wife Cicciolina

It is not the first time that Koons, pictured with his 'Balloon Dog' sculpture, has been accused of plagiarism.  He was found guilty of copying a bizarre ad campaign in Paris in 2018

It is not the first time that Koons, pictured with his ‘Balloon Dog’ sculpture, has been accused of plagiarism. He was found guilty of copying a bizarre ad campaign in Paris in 2018

Hayden's original sculpture of a giant snake coiled around a rock was sold to porn star Cicciolina's company Diva Futures

Hayden’s original sculpture of a giant snake coiled around a rock was sold to porn star Cicciolina’s company Diva Futures

It caused a worldwide reaction when the explicit series first went on display at Koons¿ then gallery, Sonnabend, with Hayden only obtaining copyright in 2020

It caused a worldwide reaction when the explicit series first went on display at Koons’ then gallery, Sonnabend, with Hayden only obtaining copyright in 2020

His lawsuit does not state and exact claim for damages, but it does cite the figure of up to $25,000 for each count of copyright infringement – ​​meaning Koons could be forced to pay up to at least $75,000.

Koons did not credit Hayden for the images, nor did he pay a licensing fee or ask for image permissions.

The works were all featured in international museum and gallery exhibitions, with the complaint stating they were then sold to collectors.

Hayden’s lawyers also claim that the works were displayed on Koons’s website and identity him as the author and copyright owner at the copyright attribution to Hayden.

According to court documents Hayden did not discover the high-profile series for more than three decades, coming across the infringement in April 2019.

He reportedly only found out when he ‘came across an Italian news article that displayed an image’ of one of the works.

The lawsuit states that Hayden retained all copyrights to the work, and did not ‘assign authorship, copyright ownership, or sublicensing rights to Diva Future or anyone else.’

It adds that he did not intend for anyone other than Cicciolina, her manager and Diva Futura, to use the work commercially.

Koons could be forced to pay up at least $75,000 in damages, with $25,000 the maximum per piece of artwork

Koons could be forced to pay up at least $75,000 in damages, with $25,000 the maximum per piece of artwork

Cicciolina, pictured, and Koons traveled to Italy in 1989 on several occasions to be photographed in sexually explicit positions together

Cicciolina, pictured, and Koons traveled to Italy in 1989 on several occasions to be photographed in sexually explicit positions together

A court in Milan that a similar snake creation, not pictured, was created by Koons despite him arguing otherwise

A court in Milan that a similar snake creation, not pictured, was created by Koons despite him arguing otherwise

Cicciolina and Koons traveled to Italy in 1989 on several occasions to be photographed in sexually explicit positions together.

Koons had requested that Hayden’s case be dismissed, but district judge Lorna Schofield ruled that the complaint ‘sufficiently alleged a valid claim of copyright.’.

He also claimed in the lawsuit that he had fair use for the sculpture, but the judge stated that he ‘bears the ultimate burden of proving that the factors balance in its favor.’

In summary District Judge Lorna called Hayden’s work ‘a sculptural work of craftmanship, lacking any readily ascertainable intrinsic utilitarian function.’

She did consent to Koons’s motion for a ruling that would limit the damages to the three-year period prior to the lawsuit, which would minimize the monetary value of Hayden’s claims if he were to win the lawsuit.

Jordan Fletcher, Hayden’s attorney, told Artnet News: ‘We look forward to presenting our arguments on the remaining fair use issues during the next round of briefing.’

Pace Gallery, which represents Koons, did not immediately respond to DailyMail.com’s request for comment.

The artist has been accused of stealing artwork as far back as 1989, and lost a longstanding legal battle in March trying to prove that a sculptures that was not made by him.

But a court in ruled the creation, which also depicted Milan snakes, was something he created.

In 2018 he was found guilty of plagiarism, with a court in Paris ordering him to pay $168k to the creator of a surreal campaign featuring a rescue pig and freezing model.

Three pieces of art that could cost mega-artist Jeff Koons $75,000

Michael Hayden claims the mega-artist used his copyrighted sculpture in three pieces which infringed on his permissions.

The first is a lithograph, initially commissioned by the Whitney Museum of American Art, which was then put on a billboard in New York.

It depicts Koons and his ex-wife Cicciolina in a sexually explicit position with the worlds ‘Made in Heaven: Starring Jeff Koons and Cicciolina’ emblazoned on it.

The lithograph was initially commissioned by the Whitney Museum of American Art

The lithograph was initially commissioned by the Whitney Museum of American Art

The second is an oil painting that Koons created as part of the ‘Made in Heaven’ series in 1990.

Titled ‘Jeff in the Position of Adam’, the painting shows Koons and his then wife entwined on top of Hayden’s sculpture.

Koons created ¿Jeff in the Position of Adam', pictured, in 1990 as part of the 'Made in Heaven' series

Koons created ‘Jeff in the Position of Adam’, pictured, in 1990 as part of the ‘Made in Heaven’ series

The lawsuit also alleges that a sculpture, called ‘Jeff and Ilona’, again from the ‘Made in Heaven’ series in 1990 breaches the copyright.

Attorneys for Hayden say that the wooden creation, that Koons debuted at the 1990 Venice Biennale, is an exact 3D replica of Hayden’s sculpture.

The 'Jeff and Ilona' sculpture was also created as part of his infamous series

The ‘Jeff and Ilona’ sculpture was also created as part of his infamous series

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