It’s a Wrap- Constructive Discovery Under Copyright Statute of Limitations

The US Court of Appeals for the Second Circuit affirmed summary judgment dismissing a copyright infringement claim as untimely, finding that the extensive publicity surrounding the accused works, combined with the copyright owner’s ties to Italy and the local art community, meant that a reasonably diligent owner should have discovered the alleged infringement years before filing suit. Hayden v. Koons, Case No. 25-498-cv (2d Cir. July 21, 2026) (Chin, Sullivan, Lee, JJ.)

Michael Hayden, a US artist who lived and worked primarily in Italy from about 1980 to 2007, created a Styrofoam sculpture depicting a serpent wrapped around boulders for Italian performer and politician Ilona Staller. In 1988, Hayden sold the sculpture to Diva Futura, Staller’s production company, for approximately $900. The parties did not execute a written agreement or discuss copyright ownership or third-party use. Hayden designed the sculpture as a platform for Staller’s live performances and film productions.

In 1989, Koons hired Staller to pose with him for photographs taken on her sets, including Hayden’s serpentine sculpture. Koons later used the photographs to create works in his Made in Heaven series. Three works were at issue: Made in Heaven (1989), Jeff and Ilona (Made in Heaven) (1990) and Jeff in the Position of Adam (1990), each depicting Koons and Staller posing on Hayden’s sculpture.

The Made in Heaven series drew substantial international attention. The works appeared in magazines, and Jeff and Ilona (Made in Heaven) was exhibited at the Venice Biennale. Publicity surrounding the series continued for decades.

Hayden asserted that he did not discover Koons’ use of the sculpture until 2019, when a business partner sent him an Italian article concerning unrelated litigation that included an image of Made in Heaven. Hayden registered the sculpture with the US Copyright Office later that year and filed suit against Koons in December 2021, alleging copyright infringement, removal, or falsification of copyright management information under the Digital Millennium Copyright Act (DMCA) and false authorship under the Visual Artists Rights Act.

The district court granted summary judgment for Koons, finding Hayden’s copyright claim untimely. Hayden appealed.

Under 17 U.S.C. § 507(b), a copyright claim must be filed within three years after it accrues. In the Second Circuit, a copyright claim accrues under the discovery rule when the copyright owner actually discovers, or with due diligence should have discovered, the infringement. The parties agreed that Hayden lacked actual knowledge before 2019. The dispute centered on whether he should have discovered the alleged infringement earlier.

Hayden argued that constructive discovery required inquiry notice and actual knowledge of facts suggesting probable infringement. The Second Circuit rejected that proposed standard. The Court explained that inquiry notice may help identify when a reasonable plaintiff would have begun investigating, but it is not itself the governing standard for constructive discovery. The Court also declined to require actual knowledge of triggering facts, reasoning that doing so would collapse constructive discovery into actual discovery.

The Second Circuit explained that the proper inquiry is whether the defendant identified sufficient facts or circumstances from which a reasonable copyright owner, exercising due diligence, should have discovered the alleged infringement.

Applying that standard, the Second Circuit agreed that Hayden’s claim was untimely. The Court relied on the combination of Hayden’s decades-long residence in Italy, including when Koons’ work appeared at the Venice Biennale; his fluency in Italian; his consumption of Italian news; and his connections to Staller and the Italian art community. The Court emphasized that Koons’ fame, standing alone, would not establish constructive discovery. Here, however, the prominence of Koons and Staller, extensive press coverage, international exhibition of the works, and the passage of almost three decades supported the conclusion that a reasonably diligent copyright owner should have learned of the alleged infringement earlier.

The Second Circuit cautioned that the discovery rule does not require artists to continuously monitor the news, internet, or popular culture. At the same time, a copyright owner may not ignore widely publicized uses and then bring suit decades later. On the record presented, the Court concluded that Hayden should have discovered the alleged infringement more than three years before filing suit.

Hayden separately argued that his DMCA claim was timely because Koons’ display of the works on his website with allegedly false copyright management information constituted separate acts that accrued independently from the underlying infringement. The Second Circuit declined to consider the argument because Hayden had not adequately preserved it before the district court.

Practice note: The decision confirms that constructive discovery remains a fact-intensive inquiry. A defendant relying on the statute of limitations should develop evidence not merely of the accused work’s fame or age, but also of the plaintiff’s location, professional relationships, media exposure, and connections to the relevant artistic or commercial community. Copyright owners, in turn, cannot rely solely on the absence of actual knowledge where the surrounding circumstances indicate that a reasonably diligent owner should have discovered the challenged use earlier.