Amaya Contreras Driggs
Renowned New York pop culture artist, Jeff Koons, who has long built his work around pre-existing images, appropriating, and adapting them into caustic and humorous critiques of contemporary society, is at the center of yet another lawsuit. While he is one of the world’s most celebrated contemporary artists, with record-selling inflatable sculptures, the well-known, yet controversial artist has faced several lawsuits. His disputes have involved art depicting puppies, sandals, children, Garfield, a ballerina, a pig, etc. And now, an adult film set prop, or if I can be more blunt, a sex platform.
At the center of Koons’ latest lawsuit is a re-usage of a stage-like setting for works made as part of Koons’s series “Made in Heaven,” which features him and his ex-wife, the former porn star, Ilona Staller, “La Cicciolina”, in sexually explicit positions, over 30 years ago. Hugh A. Hayden, the person responsible for that object, claims in the lawsuit filed in New York’s Southern District Court that Koons has committed “blatant, unlawful, and worldwide infringement.” Hayden focused his lawsuit on three “Made in Heaven” works: a lithograph, a sculpture, and an oil painting.
The complaint says Koons never asked Hayden for permission to use his sculpture, and did not offer to credit him, or pay for a license, so Hayden is asking the court for monetary damages, to block Koons from selling or reproducing the works,and to give Hayden credit as an author in texts accompanying any future exhibition of them, among other things.
Earlier this month, Koons moved to dismiss the complaint. Koons argues that the sculpture should be categorized as a useful object that has no claim to protection under copyright law and refers to the piece as a “prop” and “platform.” The Copyright Act defines a “useful article” as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information” (17 U.S.C. § 101.). Koons contends that it is undeniable that the sculpture was designed specifically to be a stage on which Staller would perform, like a bed. He also argues that even if Hayden’s sculpture qualifies for copyright protection, the complaint should be dismissed because Koons made a transformative fair use of the sculpture in his Made in Heaven series.
In response to Koons’ defenses, copyright expert Laura Heymann told Reuters that “Jeff Koons is no stranger to provocative copyright arguments. He was the defendant in two fair use cases that are widely taught in law schools and that he cites in his own motion to dismiss.”And called this new case’s defense, “equally provocative.” I have also read about his cases in my legal classes, I wonder if these lawsuits and provocative legal responses are also serving as a way of solidifying Koons’ place in our legal and art textbooks in continuity. Is he expecting these lawsuits and purposely pursues these projects seeking popularity? Are the lawsuits what keeps his name on the news? Has Koons run out of creativity (or never had any to start with)? Will the lawsuits ever stop him? Is there a point where you can have too many lawsuits that people want to disassociate themselves? Or do people sue to put themselves in the public eye, next to Koons? I may be casting doubt on him but I proudly display a replica of one of his famous balloon dogs in my apartment.
 Thomas Kjellberg, Copyright Fair Use 2005: Fine Art, Monster Movies and Karaoke, Cowan, Liebowitz & Latman
(Dec. 6, 2005), https://web.archive.org/web/20140118094603/http://www.cll.com/articles/articles/copyright-fair-use-2005-fine-art-monster-movies-and-karaoke/?back=articles#1.
 Alex Greenberger, Jeff Koons Faces Infringement Lawsuit Over Usage of Artist’s Sculpture in ‘Made in Heaven’ Series, ART News (Dec. 3, 2021), https://www.artnews.com/art-news/news/jeff-koons-made-in-heaven-infringement-lawsuit-1234612295/.
 Blake Brittain, Pop artist Jeff Koons sued over adult film set prop, Reuters (Dec. 2, 2021) https://www.reuters.com/legal/transactional/pop-artist-jeff-koons-sued-over-adult-film-set-prop-2021-12-02/.
 Greenberger, ART News (Dec. 3, 2021),
 Frankfurt Kurnit Klein & Selz PC, Jeff Koons Accused of Copyright Infringement For Unauthorized Use of a Snake Sculpture in Three Iconic Works, Lexology (Feb. 15, 2022), https://www.lexology.com/library/detail.aspx?g=da484166-3ae7-408c-a0b3-df382da79f1f.
 Jenna Greene, The artist, the porn star and the snake: Copyright case against Koons, Reuters (Feb. 10, 2022), https://www.reuters.com/legal/transactional/artist-porn-star-snake-copyright-case-against-koons-2022-02-10/.