25-498-cv Hayden v. Koons
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2025
(Argued: December 10, 2025 Decided: July 21, 2026) Docket No. 25-498-cv
MICHAEL A. HAYDEN, Plaintiff-Appellant,
v.
JEFF KOONS, JEFF KOONS LLC, Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
Before: CHIN, SULLIVAN, and LEE, Circuit Judges.
Appeal from an opinion and order of the United States District
Court for the Southern District of New York (Reif, J., sitting by designation)
granting defendants-appellees' cross-motion for summary judgment on statute of limitation grounds and dismissing the operative complaint. On appeal,
plaintiff-appellant challenges the district court's dismissal of the copyright
infringement claim as time-barred, its conclusion that the Digital Millenium
Copyright Act claim was rendered moot, and its denial of the request for
reconsideration of the scope of damages.
AFFIRMED.
JORDAN FLETCHER, Fletcher Law, PLLC, New York, NY, for Plaintiff-Appellant.
DANIEL J. BROOKS, Scarola Zubatov Schaffzin PLLC, New York, NY, for Defendants-Appellees.
CHIN, Circuit Judge:
Plaintiff-appellant Michael Hayden, an American artist who lived
and worked primarily in Italy in the late 1980s, created a large Styrofoam
sculptural work depicting a snake wrapped around boulders for Ilona Staller, a
famous Italian adult film star and politician, to use during her "live erotic
performances." Joint App'x at 628. Hayden sold the sculpture to Staller, better
known by her stage name, Cicciolina, in approximately 1988. A year later,
defendant-appellee Jeff Koons, an American artist, hired Staller to pose for erotic
-2- photos with him on her sets for an upcoming art exhibition. One of the sets on
which they posed was Hayden's Styrofoam structure. Koons then used the
photos to create several pieces of art, three of which showed him and Staller
posing on the Styrofoam structure. These pieces were included in Koons's Made
in Heaven series and were widely displayed in Italy and beyond beginning
around 1989. Hayden contends he did not discover Koons's allegedly infringing
use of the Styrofoam structure until decades later, in 2019, when he came across a
news article discussing the Made in Heaven works.
Hayden filed suit against Koons in December 2021 and added Jeff
Koons LLC as a defendant in July 2022. On cross-motions for summary
judgment, the district court ruled, inter alia, that Hayden's copyright
infringement claim was time-barred, thus rendering Hayden's Digital Millenium
Copyright Act (the "DMCA") claim and request for reconsideration of the scope
of damages moot. Hayden appeals, arguing that the district court (1) erred in
dismissing his copyright infringement claim as time-barred because it applied
the wrong standard, (2) erred in dismissing his DMCA claim as moot because it
accrued independently based on later website posts, and (3) abused its discretion
in denying his request for reconsideration as to the damages period.
-3- For the reasons set forth below, the opinion and order of the district
court is AFFIRMED.
BACKGROUND
I. The Facts 1
A. The Parties
1. Hayden
From around 1980 to 2007, Hayden, a United States citizen, lived
primarily in Rome, Italy, where he worked as an artist. Hayden held various
roles, including as a self-employed visual artist, set and prop designer for live
theater companies, interior designer, and residential architect. While residing
and working in Italy, Hayden immersed himself in the local culture: he became
fluent in Italian, lived with his then-partner Sergio Meschino, an Italian citizen,
and consistently consumed Italian news and other media via television
programs, movies, and daily Italian newspapers.
1 On appeal following a district court's grant of summary judgment, we "constru[e] the evidence in the light most favorable to the party against whom summary judgment was granted and draw[] all reasonable inferences in that party's favor." Bey v. City of New York, 999 F.3d 157, 164 (2d Cir. 2021).
-4- 2. Koons and Jeff Koons LLC
Koons is, as Hayden described in his complaint, a globally
recognized "contemporary American 'appropriation artist.'" Joint App'x at 179
¶ 3. 2 Apart from the publicity surrounding his artwork, Koons's personal life has
also been the center of global attention. In the early 1990s, Koons began a
relationship with Staller after collaborating with her artistically. Staller, through
her work as both an adult film star and member of the Italian Parliament, was "a
celebrity and household name in Italy," id. at 296 ¶ 19, and her relationship with
Koons generated much attention. Their 1991 marriage was highly publicized in
Italy and beyond, as was news of their divorce proceedings and child custody
battle that followed a few years later.
Koons operates Jeff Koons LLC, which manages his website. The
website displays several pieces of Koons's artwork, including the pieces at issue
in this appeal, which have been displayed on the website "for many years." Id. at
189 ¶ 44.
2 "Appropriation artists take other artists' work and use it in their own art, appropriating it and incorporating it in their own product with or without changes." Blanch v. Koons, 485 F. Supp. 2d 516, 518 (S.D.N.Y. 2007).
-5- B. The Art
1. Hayden's Work
While residing in Italy in the 1980s, Hayden created various
sculptural works for Diva Futura, an Italian production company owned by
Staller and her manager and director, Riccardo Schicchi. Through his work with
Diva Futura, Hayden learned of Staller's interest in snakes and decided to build a
serpentine structure on which Staller could perform during her live shows and
film productions. The structure, which Hayden made from Styrofoam, glue,
gauze, and plaster, depicted a serpent wrapping itself around a pedestal of
boulders. The sculpture was approximately 6.56 feet long, 3.26 feet wide, and
1.96 feet tall. Hayden designed it to be low enough for Staller to easily step onto
and created a flat top so she could use it as a platform during her performances.
After completing the structure, Hayden sold it to Diva Futura in
1988 for approximately $900 in cash. There was no contract reflecting the sale,
nor did Hayden discuss with Diva Futura the copyright or exploitation of the
work or third-party use of the sculpture. After selling the structure, Hayden
made no further sales to Diva Futura and had no contact with Staller and
Schicchi.
-6- 2. Koons's Works
In early 1989, Koons was commissioned by the Whitney Museum of
American Art (the "Whitney") to create a billboard to be displayed in an
upcoming exhibition. As part of this project, Koons hired Staller to pose for
erotic photos with him on her sets and in her studio. At the time, Koons did not
have a relationship with Staller but had seen her work in various magazines.
Koons intended for the photos to be similar to Staller's other works, and thus
hired her usual photographer, Schicchi, and her typical stylists and staff to
ensure authenticity in his production. One of the sets on which Koons and
Staller posed was the Styrofoam serpentine structure Hayden sold Diva Futura a
year earlier.
Koons used the photos of him and Staller to create various works
that comprised his Made in Heaven series, three pieces of which are at issue in this
case. The first piece, Made in Heaven, is a lithograph, created in 1989, that was
first displayed as a billboard in New York City. The lithograph depicts Koons
and Staller posing atop Hayden's serpentine structure. Koons is nude, laying his
arm across Staller and staring into the camera, while Staller, dressed in white
lingerie, lays beneath Koons with her head tilted backward. The billboard was
-7- designed as an advertisement for a film featuring Koons and Staller that
ultimately was never produced.
The second piece, Jeff and Ilona (Made in Heaven), is a polychromed
wood sculpture created in 1990 and first displayed at the Venice Biennale the
same year. The sculpture again depicts Koons and Staller posing atop the
serpentine structure. Koons is nude and gazing at Staller, who lays beneath him
dressed in white lingerie with her head tilted backward.
The last piece, Jeff in the Position of Adam, is an oil on canvas created
in 1990. This work again portrays Koons and Staller posing atop Hayden's
structure. Koons is pictured leaning back on the structure, resting one elbow on
the pedestal and two hands on Staller, who is laying down and looking up. This
piece was sold to a private collector, but "has been exhibited publicly on
numerous occasions." Id. at 644-45 ¶ 46.
The Made in Heaven series sent shockwaves through the art scene: it
"caused a media sensation and scandal when it premiered" and "is regularly
credited with launching Mr. Koons into the art world's stratosphere." Id. at 186
¶ 37. The first display of the Made in Heaven billboard, for example, immediately
drew international attention, and photos of Koons and Staller posing on the
-8- serpentine structure adorned the cover of the April-May 1990 issue of Galeries
Magazine, a French publication. Inside, the magazine included a photo of the
Made in Heaven billboard being displayed in New York City, followed by an
interview, reproduced in both French and English, in which Koons discussed his
forthcoming work. Koons also described the Made in Heaven series in an
interview published in the Summer 1990 issue of Flash Art.
Publicity only increased as Koons and Staller's working relationship
turned romantic, and Koons's display at the 1990 Venice Biennale garnered even
more attention. As the August 1990 issue of Vogue exclaimed, alongside photos
of Koons's art, "all the talk was of Jeff Koons" at the Venice Biennale. Id. at 555.
Vogue went on to describe Koons as "the most provocative young American artist
of the moment," and, together with Staller, a celebrity in her own right, they were
"the media sensation of the 1990 Venice Biennale." Id.
Following its debut, the Made in Heaven series continued to garner
international attention. The three works have been publicly displayed at several
museums and galleries across the world. The record also provides several
examples of the extensive publicity the Made in Heaven series received in the
more than thirty years since its debut. For example, in 2013, Koons gave the
-9- James T. Demetrion Lecture at the Hirshhorn Museum and Sculpture Garden, in
which he described working with Staller, her sets, and her photographer on the
Made in Heaven series. The following year, the Whitney curated a retrospective
exhibition about Koons. As its website explained, "Koons is widely regarded as
one of the most important, influential, popular, and controversial artists of the
postwar era." Id. at 523. The Whitney website included photos of Made in Heaven
and described Koons's work and relationship with Staller as having "caused a
media sensation." Id. at 525. As part of the retrospective exhibition, the curator,
Scott Rothkopf, published an essay in the Whitney's exhibition catalogue in 2014
detailing Koons's career. The essay detailed Koons's work with Staller and
compiled many of the accolades bestowed on Koons over the course of his
career: "the hottest young artist in America," "the ultimate entrepreneur of the
new art market" in the 1980s, and "one of the most famous and popular artists on
this planet." Id. at 529 (citation modified).
C. Hayden's Discovery of Koons's Work
Hayden had general familiarity with both Staller and Koons, but he
did not actually discover Koons's allegedly infringing works until approximately
three decades after Koons's original works were made. Specifically, in April
- 10 - 2019, Hayden's then-business partner, Meschino, notified him of a La Repubblica
article discussing a lawsuit between Staller and Sotheby's regarding publication
of the Made in Heaven works. The article included a photo of Made in Heaven, in
which Koons and Staller are laying atop Hayden's Styrofoam structure.
After discovering Koons's works, Hayden filed an application for
copyright registration of his structure in August 2019. The U.S. Copyright Office
granted Hayden's application in early 2020, and issued a Certificate of
Registration, effective August 7, 2019. In March 2020, Hayden's counsel sent a
letter to Koons's counsel alleging violations of the Copyright Act, the Visual
Artists Rights Act ("VARA"), and the DMCA.
II. Procedural History
Hayden filed this lawsuit in December 2021 alleging (1) copyright
infringement, in violation of 17 U.S.C. § 501 et seq.; (2) false copyright
management information, in violation of the DMCA; and (3) false claims of
authorship, in violation of VARA. In July 2022, the district court (Schofield, J.)
denied Koons's motion to dismiss, but, based on then-controlling precedent,
granted Koons's request to limit the applicable damages period to the three years
preceding the filing of the complaint.
- 11 - Hayden then filed the now operative complaint (the "Complaint") in
which he reasserted the above-listed claims and added Jeff Koons LLC as a
defendant. On September 15, 2022, Hayden filed a motion for summary
judgment, and on October 5, 2022, Koons and Jeff Koons LLC (together "Koons")
filed a cross-motion for summary judgment. In November 2022, the case was
reassigned to Judge Reif.
Following the Supreme Court's decision in Warner Chappell Music,
Inc. v. Nealy, 601 U.S. 366 (2024), Hayden filed a letter in June 2024 seeking leave
to file a motion for reconsideration of the district court's earlier decision
regarding the scope of available damages. The district court heard oral
argument in January 2025 on the outstanding motions and request to move for
On February 25, 2025, the district court issued an opinion and order
in which it denied Hayden's motion for summary judgment, denied Hayden's
request to move for reconsideration of the scope of available damages, and
granted Koons's cross-motion for summary judgment dismissing the Complaint.
As relevant here, the district court concluded that Hayden's copyright
infringement claim was time-barred, and that therefore Hayden's DMCA claim
- 12 - and request for reconsideration of the scope of damages were rendered moot. In
assessing the timeliness of Hayden's claim, the court concluded -- based on
Hayden's fluency in Italian, consumption of Italian news, familiarity with Staller,
own sworn statement about Koons's notorious career, as well as the timing of his
residency in Italy in relation to Koons's exhibition at the Venice Biennale -- that
"[a] 'reasonably diligent' person in plaintiff's position should have discovered the
alleged infringement prior to 2019." Sp. App'x at 19; see also id. at 19-23. And
because "[t]here was no actionable copyright infringement," id. at 28, the district
court concluded that the DMCA claim could not proceed independently and
dismissed it as moot. 3
This appeal followed.
3 The district court did not separately enter judgment, but under Federal Rule of Civil Procedure 58, judgment is considered entered after 150 days of the order dismissing the case. See Fed. R. Civ. P. 58(c)(2)(B); Arzuaga v. Quiros, 781 F.3d 29, 33 (2d Cir. 2015).
- 13 - DISCUSSION
Hayden presents two principal issues on appeal. He argues that the
district court erred by (1) dismissing his copyright infringement claim as
time-barred and (2) dismissing his DMCA claim as moot. 4
I. The Copyright Infringement Claim
Hayden first contends that the district court erred in dismissing the
copyright claim based on the discovery rule.
A. Standard of Review
"We review a district court's grant of summary judgment de novo
where the parties filed cross-motions for summary judgment and the district
court granted one motion but denied the other." Atlas Air, Inc. v. Int'l Bhd. of
Teamsters, 943 F.3d 568, 576-77 (2d Cir. 2019) (citation modified). With
cross-motions, "we evaluate each party's motion on its own merits and draw all
reasonable inferences against the party whose motion we are considering."
Granite State Ins. Co. v. Primary Arms, LLC, 161 F.4th 160, 168 (2d Cir. 2025)
(citation modified). Summary judgment is proper when "there is no genuine
4 Hayden's third claim on appeal, that the district court abused its discretion in denying his request for reconsideration of its ruling as to the scope of damages, is moot in light of our rulings on the merits.
- 14 - dispute as to any material fact and the movant is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(a).
B. Applicable Law
A copyright claim must be brought "within three years after the
claim accrued." 17 U.S.C. § 507(b). In determining when a claim accrued, this
Court applies the "discovery rule." See Psihoyos v. John Wiley & Sons, Inc., 748
F.3d 120, 124 (2d Cir. 2014) (adopting the discovery rule for copyright
infringement claims); see also Sohm v. Scholastic Inc., 959 F.3d 39, 50 (2d Cir. 2020)
(reaffirming this Court's adherence to the discovery rule), abrogated on other
grounds by Warner Chappell Music, 601 U.S. 366. 5
Pursuant to the discovery rule, "copyright infringement claims do
not accrue until actual or constructive discovery of the relevant infringement."
5 In Warner Chappell Music, the Supreme Court held that damages for copyright infringement were not limited to the three-year period prior to the filing of suit. 601 U.S. at 372. The Court declined, however, to decide the question of whether the discovery rule applies in copyright cases. Id. at 368 ("In this case, we assume without deciding that a claim is timely under [the Copyright Act] if brought within three years of when the plaintiff discovered an infringement, no matter when the infringement happened."); see also id. at 371 (noting that the question for which certiorari was granted "assume[s] that the discovery rule governs the timeliness of copyright claims," but that the Court has "never decided whether that assumption is valid"). Eleven circuits, including ours, have reached the question and held that the discovery rule applies. See Michael Grecco Prods., Inc. v. RADesign, Inc., 112 F.4th 144, 150 & n.4 (2d Cir. 2024), cert. denied, 145 S. Ct. 2792 (2025) (collecting cases).
- 15 - Psihoyos, 748 F.3d at 125. In other words, claims accrue when "the copyright
holder discovers, or with due diligence should have discovered, the
infringement." Id. at 124. A plaintiff thus "has the length of time it takes, using
due diligence, to discover the infringement; only from that point does the statute
of limitations begin to run." Michael Grecco Prods., Inc. v. RADesign, Inc., 112 F.4th
144, 151 (2d Cir. 2024), cert. denied, 145 S. Ct. 2792 (2025).
Here, the parties do not dispute that Hayden did not have actual
knowledge of the alleged infringement before 2019. Instead, this appeal turns on
whether Hayden should have discovered the alleged infringements more than
three years prior to when he filed suit in December 2021.
Determining "[t]he date on which a copyright holder, with the
exercise of due diligence, would have discovered an infringement . . . is a
fact-intensive inquiry." Id. at 152. In establishing a statute of limitations defense,
a defendant cannot rely simply on the copyright holder's sophistication or the
passage of time since the alleged infringement. See id. at 148, 154 n.8 (rejecting a
categorical "sophisticated plaintiff" exception to the discovery rule); Sohm, 959
F.3d at 51 (explaining that defendants cannot "rely on the passage of time alone"
to establish that a plaintiff should have discovered the alleged infringement).
- 16 - Instead, the defendant must identify facts or circumstances that would have led a
copyright holder, acting with due diligence, to have discovered the alleged
infringement more than three years before filing suit. Michael Grecco Prods., 112
F.4th at 150-51; Sohm, 959 F.3d at 51; see also Merchant v. Levy, 92 F.3d 51, 56 (2d
Cir. 1996) ("A cause of action accrues when a plaintiff knows or has reason to know
of the injury upon which the claim is premised." (emphasis added)).
On appeal, Hayden suggests a heightened standard for the
discovery rule that our precedent does not require. Relying primarily on logic
from this Circuit's securities fraud cases, Hayden contends that (1) a plaintiff has
constructive knowledge only if he is on inquiry notice, that is, the circumstances
have triggered a duty to inquire, and (2) as part of the inquiry notice standard, "a
plaintiff must have actual knowledge of facts that would suggest the probability
that infringement had occurred." Appellant's Br. at 1; see also id. at 11 ("[T]he
District Court ignored the settled rule that a plaintiff must have actual
knowledge of facts that would lead a reasonable person to believe that
infringement was probable before the limitations period begins to run.").
Hayden's arguments for a heightened standard fail for the following
reasons. First, as the Supreme Court explained in Merck & Co. v. Reynolds, 559
- 17 - U.S. 633 (2010), inquiry notice and constructive discovery are not the same. In
Merck, the Court explained that "discovery," as used in the statute of limitations
for securities fraud, 28 U.S.C. § 1658(b)(1), encompasses both actual and
constructive discovery. Merck, 559 U.S. at 648, 651-53. While some circuits had
used "discovery" and "inquiry notice" interchangeably, id. at 650, the Court
rejected this approach. The Court reasoned that although "terms such as 'inquiry
notice' and 'storm warnings' may be useful to the extent that they identify a time
when the facts would have prompted a reasonably diligent plaintiff to begin
investigating," "the limitations period does not begin to run until the plaintiff
thereafter discovers or a reasonably diligent plaintiff would have discovered 'the
facts constituting the violation' . . . irrespective of whether the actual plaintiff
undertook a reasonably diligent investigation." Id. at 653 (emphasis added). 6 Indeed,
6 In securities fraud cases, "inquiry notice" is commonly understood as "the point at which a plaintiff possesses a quantum of information sufficiently suggestive of wrongdoing that he should conduct a further inquiry." Merck, 559 U.S. at 650 (citation modified). In other words, inquiry notice requires an objective assessment of whether "the information provided . . . trigger[ed] notice with sufficient storm warnings to alert a reasonable person to the probability" of the defendant's wrongdoing. Meyer v. Seidel, 89 F.4th 117, 134-35 (2d Cir. 2023) (citation modified). We often consider inquiry notice and storm warnings in tandem, and in assessing the sufficiency of storm warnings we closely scrutinize relevant news reports, the scope of publication, the typical audience, and the level of detail included. See id.; Staehr v. Hartford Fin. Servs. Grp., 547 F.3d 406, 412-16 (2d Cir. 2008).
- 18 - the Court squarely "reject[ed] 'inquiry notice' as the standard generally." Merck,
559 U.S. at 652. Even though Merck interprets a specific statute of limitations in a
different context, the Court's clarification is instructive here. 7 Accordingly,
although inquiry notice "may be useful," it is not the standard for constructive
discovery in copyright infringement claims. Merck, 559 U.S. at 653.
Second, because inquiry notice is not the standard, actual
knowledge of triggering information -- an element of inquiry notice -- is likewise
not required for constructive discovery. As Hayden's counsel acknowledged at
oral argument, this Court has not "explicitly said whether . . . affirmative
evidence must be known to the plaintiff." Oral Argument at 26:26, Hayden v.
Koons (No. 25-498-cv), https://ww3.ca2.uscourts.gov/oral_arguments.html. We
have never adopted a requirement that plaintiffs have actual knowledge of
triggering information in the context of copyright infringement cases, and we
7 In defining the discovery rule in the copyright context, our sister circuits have similarly looked to other statutes of limitations. See, e.g., Warren Freedenfeld Assocs., Inc. v. McTigue, 531 F.3d 38, 44-45 (1st Cir. 2008) (analogizing to inquiry notice and storm warnings as used in the securities fraud context); William A. Graham Co. v. Haughey, 568 F.3d 425, 438 (3d Cir. 2009) (same); Chicago Bldg. Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 615-16 (7th Cir. 2014) (adopting Merck's distinction between inquiry notice and discovery). District courts within this Circuit have done the same. See, e.g., Fioranelli v. CBS Broad. Inc., 551 F. Supp. 3d 199, 249 (S.D.N.Y. 2021); McDermott v. This Dog's Life Corp., 730 F. Supp. 3d 73, 79 (S.D.N.Y. 2024).
- 19 - decline to do so today. To require actual knowledge as part of the constructive
discovery analysis would conflate actual and constructive discovery and render
the latter prong of the discovery rule a nullity.
In sum, constructive discovery turns on both reasonableness and
due diligence. The proper analysis requires an assessment of whether the
defendant has identified sufficient facts or circumstances from which a
reasonable copyright owner, with the exercise of due diligence, should have
discovered the alleged infringement. See Michael Grecco Prods., 112 F.4th at
150-52; Sohm, 959 F.3d at 50-51.
C. Application
The district court held that "a 'reasonably diligent' person in
[Hayden's] position should have discovered the alleged infringement prior to
2019." Sp. App'x at 19. We agree. The district court did not err in concluding
that Hayden's claim was time-barred.
To begin, Hayden lived in Italy for almost three decades and
immersed himself in the local culture. He was fluent in Italian, watched and
read local news, lived with an Italian citizen, and actively immersed himself in
- 20 - the local art scene, through which he repeatedly worked directly with Staller and
her production company.
Hayden's time in Italy also overlapped with the premiere of Koons's
artwork at the Venice Biennale, where "all the talk was of Jeff Koons." Joint
App'x at 555. As Hayden himself described, "[t]he Made in Heaven series caused
a media sensation and scandal when it premiered" and "is regularly credited with
launching Mr. Koons into the art world's stratosphere." Id. at 180 (emphasis
added). 8 That "sensation and scandal" led international news sources --
including the April-May 1990 issue of Galeries Magazine and the August 1990
issue of Vogue -- to provide extensive coverage of Koons's controversial work,
with several photos of Koons and Staller atop Hayden's Styrofoam structure.
Notably, this "scandal" occurred more than three decades ago, yet Koons's art has
continued to receive publicity and has been displayed at museums across the
world in the decades since its premiere. Although Koons "cannot rely on the
passage of time alone to establish that [Hayden] should have discovered the
alleged copyright infringement[]," Sohm, 959 F.3d at 51, the long duration of time
8 The statements made in the Complaint are judicial admissions to which Hayden is bound. See In re Motors Liquidation Co., 957 F.3d 357, 360 (2d Cir. 2020) (per curiam).
- 21 - that has passed, coupled with the extensive publicity the three Made in Heaven
works have received in the ensuing years, is surely relevant.
Further, Koons and Staller are both well-known public figures. As
Hayden himself described in his Complaint, "Koons is one of the most
controversial living contemporary artists in the world" and is "known widely as
an 'appropriation artist.'" Joint App'x at 185 ¶¶ 32-33. Further, as Hayden noted,
Koons's popularity preceded his publication of the works at issue: "prior to Made
in Heaven, Koons had become one of the most famous young artists in the world."
Id. at 188 ¶ 39 (citation modified). Staller was also famous in her own right. As
Hayden explained, Staller was "famous in Italy," a "household name," and of
"public interest." Id. at 487. In short, Koons and Staller, and the art they were
featured in, garnered international attention.
Taken together, 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's international fame, and the passage
of almost three decades -- establish as a matter of law that a reasonably diligent
- 22 - copyright holder should have discovered the alleged infringement more than
three years prior to when Hayden filed suit.
Despite these facts and circumstances, Hayden contends that he
knew nothing about Koons before 2019, apart from general awareness of Koons's
public custody battle with Staller "[b]ecause it was in all the newspapers" or "on
the television." Id. But as explained above, Hayden's actual knowledge is not
determinative. The question is not whether Hayden was actually aware of the
allegedly infringing art; rather, it is whether a reasonable copyright owner should
have been aware of it. On the record before us, a reasonable factfinder could
only conclude that, with due diligence, Hayden should have learned of the
alleged infringement of his work in the almost thirty years from 1989 and 1990
(when Koons created and debuted the allegedly infringing works) until
December 2018 (three years before suit was filed).
To be clear, our consideration of Koons's fame and related media
coverage does not, as Hayden suggests, create some form of "celebrity privilege,"
Reply Br. at 1, because our analysis does not hinge on Koons's fame alone.
Instead, widespread news coverage, international fame, and long-lasting
popularity are just some of many factors to consider. We do not expect a
- 23 - reasonable copyright holder to scour the news, comb through the internet, or
keep apprised of pop culture. At the same time, however, 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. See City of Pontiac Gen. Emps.' Ret.
Sys. v. MBIA, Inc., 637 F.3d 169, 175 (2d Cir. 2011) (underscoring that statutes of
limitations "extinguish[] a plaintiff's remedy after he has slept on his claim for a
prolonged period of time" to prevent plaintiffs "from unfairly surprising
defendants by resurrecting stale claims").
Accordingly, the district court correctly determined that Hayden's
copyright infringement claim is time-barred, and thus it properly granted
Koons's cross-motion for summary judgment.
II. The DMCA Claim
Hayden next challenges the district court's dismissal of the DMCA
claim as moot. Specifically, Hayden seemingly argues that the separate-accrual
rule from Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), which
involved the accrual of copyright infringement claims, applies to DMCA claims
as well. On Hayden's telling, even if his original infringement claims were
- 24 - time-barred, the "publication of images of the Koons Works on the Koons
Website alongside false copyright management information" was a "distinct"
illegal act, Appellant's Br. at 23, that "accrued independently from [Hayden's]
infringement claim," id. at 1-2.
"It is a well-established general rule that an appellate court will not
consider an issue raised for the first time on appeal." Allianz Ins. Co. v. Lerner, 416
F.3d 109, 114 (2d Cir. 2005) (citation modified). "Merely typing out the key
words or merely incanting the key phrase without offering any argument or
explanation of the point to the district court is insufficient to preserve the issue
for appeal." Doe v. Trump Corp., 6 F.4th 400, 410 (2d Cir. 2021) (citation modified).
Here, Hayden did not adequately raise before the district court the
argument that DMCA claims accrue separately from infringement claims. Koons
argued repeatedly below that if Hayden's copyright infringement claim failed,
the DMCA claim would necessarily fail too. See, e.g., Joint App'x at 98, 111
(Defendant's Memorandum of Law in Support of Motion to Dismiss the
Complaint) (arguing that § 1202(a) only applies "where there is copyright
infringement"); id. at 760 (Defendants' Reply Memorandum of Law in Support of
Cross-Motion for Summary Judgment) (same). Nowhere below did Hayden
- 25 - assert, as he now does on appeal, that DMCA claims accrue separately from the
infringement claims. In fact, Hayden only mentioned Petrella's separate-accrual
rule in the context of damages, while making just general assertions of timeliness
as to all claims. See, e.g., id. at 259 (Plaintiff's Memorandum of Law in Support of
Motion for Summary Judgment) ("Hayden's Claims Were Timely Filed."). Such
conclusory assertions are insufficient to preserve the specific argument he now
makes on appeal. See Doe, 6 F.4th at 410.
Although this rule is prudential and we may exercise our discretion
to consider arguments not preserved for appeal, we decline to do so here, where
the arguments were available to Hayden below. See Allianz Ins. Co., 416 F.3d at
114.
Moreover, even if preserved for our review, Hayden's argument is
not sufficiently presented for appeal. "When a party fails adequately to present
arguments in an appellant's brief, we consider those arguments abandoned."
State St. Bank & Tr. Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 172 (2d Cir.
2004). Simply mentioning an issue in "a perfunctory manner, unaccompanied by
some effort at developed argumentation" is insufficient. In Re Philip Morris Int'l
Inc. Sec. Litig., 89 F.4th 408, 428 (2d Cir. 2023) (citation modified); see, e.g., Tolbert
- 26 - v. Queens Coll., 242 F.3d 58, 76 (2d Cir. 2001) (concluding that an argument was
abandoned where defendants asserted it in a "single perfunctory sentence" in a
footnote and failed to include any "analysis or discussion" of the disputed legal
issue).
While Hayden argues on appeal that the district court erred in
dismissing his DMCA claim as moot, he does so in a wholly conclusory manner.
He provides no legal analysis of the central, disputed question: whether DMCA
claims accrue independent of copyright infringement claims. Instead, he
provides only a "see" citation to Petrella, seemingly assuming that Petrella's
separate-accrual rule, decided in the context of copyright infringement, applies
to DMCA claims. This, however, remains an open question. Compare Media Rts.
Techs., Inc. v. Microsoft Corp., 922 F.3d 1014, 1026 (9th Cir. 2019) (concluding, in
the context of an alleged violation of 17 U.S.C. § 1201, that although the same
statute of limitations applies to copyright infringement and DMCA claims, "there
is no parallel separate-accrual rule that applies to [a] DMCA claim"), with
Trombetta v. Novocin, No. 18-CV-993 (RA), 2021 WL 6052198, at *9 n.6 (S.D.N.Y.
Dec. 21, 2021) (explaining that the parties did not cite and the district court did
not find "any court that has held that the separate-accrual rule endorsed by the
- 27 - Supreme Court in Petrella does not apply to DMCA claims under § 1202").
Hayden's appellate brief provides no analysis of this dispute, and thus he has
abandoned the argument. See State St. Bank & Tr. Co., 374 F.3d at 172.
Accordingly, we decline to consider Hayden's arguments in this
respect as they were neither properly preserved nor presented for appeal.
CONCLUSION
For the reasons set forth above, we AFFIRM the district court's
opinion and order.
- 28 -