IP Law Daily, COPYRIGHT—2d Cir.: No duty to investigate, but still a duty to discover? Court elaborates on the copyright discovery rule, (Jul 22, 2026)

By Matthew Hersh, J.D.

An artist’s claim is time-barred because a reasonable person in his position should have become aware of the alleged infringement.

A sculptor who was residing in Italy when the allegedly infringing use of his works by a prominent artist caused a public scandal in that country should have discovered the infringement decades before he brought his lawsuit, the U.S. Court of Appeals for the Second Circuit has held. The ruling in the lawsuit, whose colorful cast of characters include an Italian-American sculptor, a famous appropriation artist, and a porn star-turned-politician, illustrates what some may consider the fine line that exists between an affirmative obligation to investigate potential infringement and an obligation to at least be reasonably aware of the surroundings in the local artistic community (Hayden v. Koons, No. 25-498-cv (2d Cir. Jul. 21, 2026)).

The lawsuit involves a set of intrigues worthy of a steamy romance novel. Michael Hayden is an American artist who resided primarily in Italy from approximately 1980 to 2007. During that time period he created several sculptural works for Diva Futura, an Italian adult film production company part owned by Hungarian-Italian erotic performer—and eventual Italian politician—Ilona Staller (better known by her stage name, Cicciolina). One of those works, a Styrofoam sculpture depicting a giant serpent wrapped around a pedestal of boulders, was entitled Made in America.

Enter Jeff Koons, the widely known “appropriation artist” (and longtime target of copyright owners). He hired Staller in the late 1980s to be photographed in sexually explicit positions and eventually entered into a torrid—and decidedly high profile—romance with her (a photo of the couple accompanies this recent story on the release of her memoir). Koons borrowed the sculptor’s work for six different artworks that comprise part of his own Made in Heaven series. Among those are the Made in Heavenbillboard (1989), Jeff and Ilona (Made in Heaven) (1990) and Jeff in the Position of Adam (1990).

The Italian-American sculptor sued Koons in 2021 for copyright infringement as well as violations of the Digital Millennium Copyright Act and the Visual Artists Rights Act. But the district court, after denying Koons’ motion to dismiss, eventually granted summary judgment for Koons on the ground that the lawsuit was barred by the statute of limitations (see Litigants beware: keep up with your local news—or be time-barred from your claim, (Feb. 26, 2025)). The sculptor appealed, leading to this opinion.

Statute of limitations. The court affirmed the judgment below. Before getting to the facts, the court of appeals set forth some basic principles of the application of the discovery rule to the copyright statute of limitations. Copyright claims accrue, the court noted, when “the copyright holder discovers, or with due diligence should have discovered, the infringement.” Importantly, the court emphasized, copyright law’s due diligence standard is not the same as the “inquiry notice” standard applicable in other areas of law. For example, in securities law, the court noted, a plaintiff must have actual knowledge of facts “that would lead a reasonable person to believe that fraud was probable before the limitations period begins to run.” (Courts sometimes refer to these facts as “storm warnings.”) By contrast, the court noted, copyright law claims can accrue, and the statute of limitations clock can therefore start to run, even without a showing that the copyright owner was objectively aware of anything. Although the concept of inquiry notice may be “useful” in the copyright context, the court emphasized, “it is not the standard for constructive discovery in copyright infringement claims.”

Under this standard, the court found, the district court had it right. To begin, the court noted, Hayden “lived in Italy for almost three decades and immersed himself in the local culture.” He also “was fluent in Italian, watched and read local news, lived with an Italian citizen, and actively immersed himself in the local art scene.” Further, the court noted, Koons and Staller are both well-known public figures. “Taken together,” the court concluded, “the undisputed facts here—the decades Hayden spent in Italy, which overlapped with the media scandal surrounding the Made in Heaven premiere, Hayden's consumption of Italian news, his direct connection to Staller and the art world, Staller and Koons' international fame, and the passage of almost three decades—establish as a matter of law that a reasonably diligent copyright holder should have discovered the alleged infringement more than three years prior to when Hayden filed suit.”

The court emphasized that its consideration of Koons' fame and related media coverage “does not, as Hayden suggests, create some form of ‘celebrity privilege.’” Instead, the court noted, widespread news coverage, international fame, and long-lasting popularity were “just some of many factors to consider.” The court emphasized that copyright holders were not required to “scour the news, comb through the internet, or keep apprised of pop culture” in order to protect their claims. At the same time, however, the court noted, “the discovery rule does not allow plaintiffs to bury their heads in the sand, ignore widespread international media coverage of allegedly infringing art, and then sue for potential infringement some thirty years later.”

The Case is No. 25-498-cv.

Judge: Chin, D.

Attorneys: Jordan Fletcher (Fletcher Law, PLLC) for Michael A. Hayden. Daniel J. Brooks (Scarola Zubatov Schaffzin PLLC) for Jeff Koons.

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