Hayden v. Koons: Photo Infringement Insights. Statute of Limitations in Second Circuit
Second Circuit Signals That "I Didn't Know" May No Longer Be Enough
By Attorney Steve® | Vondran Legal®
For decades, many copyright owners have relied on a simple premise:
"I didn't know my work was being infringed, so my three-year statute of limitations hasn't started yet."
The U.S. Court of Appeals for the Second Circuit recently made that argument significantly more difficult.
In Hayden v. Koons, No. 25-498-cv (2d Cir. July 21, 2026), the court affirmed summary judgment against artist Michael Hayden, holding that—even though Hayden claimed he did not actually discover the infringement until 2019—a reasonably diligent copyright owner should have discovered it decades earlier.
While the decision is technically binding only in the Second Circuit (New York, Connecticut, and Vermont), it contains important lessons for photographers, artists, illustrators, content creators, and copyright litigators nationwide.
What Happened?
Michael Hayden created a large Styrofoam sculpture for Italian performer Ilona Staller (known professionally as "Cicciolina") in the late 1980s.
Jeff Koons later photographed himself and Staller posing on Hayden's sculpture and incorporated those images into his famous Made in Heaven series.
Those works became internationally famous.
They appeared:
- in magazines
- museums
- international exhibitions
- the Venice Biennale
- art publications
- media reports for decades
Hayden claimed he never saw them until 2019.
He registered his copyright shortly thereafter and sued Koons in 2021.
The district court—and now the Second Circuit—held the lawsuit came too late.
The Key Legal Issue
Federal copyright claims generally must be brought within three years after the claim accrues under 17 U.S.C. § 507(b).
For years, courts have wrestled with one difficult question:
When does a claim "accrue"?
Many courts—including the Second Circuit—apply the Discovery Rule.
That means the clock starts running when:
- the copyright owner actually discovers the infringement; or
- the copyright owner reasonably should have discovered it through due diligence.
The second category became the focus of Hayden.
The Court Rejected a Narrow View of Constructive Discovery
Hayden argued that constructive discovery should require:
- inquiry notice,
- actual knowledge of suspicious facts,
- or facts strongly suggesting infringement.
The Second Circuit disagreed.
Instead, the court framed the issue much more broadly:
Would a reasonably diligent copyright owner have discovered the infringement under the circumstances?
That is an objective test.
Not a subjective one.
Why Hayden Lost
The court emphasized that no single fact decided the case.
Instead, it looked at the totality of the circumstances, including:
Hayden lived in Italy for decades.
The allegedly infringing works were created and exhibited there.
Hayden spoke fluent Italian.
He regularly consumed Italian newspapers and media.
Hayden knew the people involved.
He had connections to Ilona Staller and the Italian art community.
Koons' works were everywhere.
The Made in Heaven series received enormous publicity.
The works appeared in museums, publications, and international exhibitions for nearly thirty years.
Taken together, the court concluded that a reasonably diligent artist in Hayden's position would have discovered the alleged infringement years earlier.
What the Court Did NOT Say
This is perhaps the most important language in the opinion.
The Second Circuit specifically warned that:
Copyright owners are not required to constantly monitor the Internet.
Nor must artists:
- search Google every day,
- monitor Instagram continuously,
- review every museum catalog,
- or patrol every marketplace.
That would be unrealistic.
But the court also explained that copyright owners cannot ignore highly publicized uses that would likely come to their attention through ordinary professional diligence.
That distinction is likely to become increasingly important.
Why This Matters for Photographers
This decision has enormous implications for professional photographers.
Today's photographers have access to tools that did not exist twenty years ago.
Examples include:
- Google Reverse Image Search
- Google Lens
- Pixsy
- Copytrack
- ImageRights
- Digimarc
- TinEye
- AI-powered infringement detection services
As these technologies become commonplace, defendants may increasingly argue:
"A reasonably diligent photographer would have found this years ago."
That argument may gain traction.
Expect Defendants to Raise This Defense More Often
Prior to Hayden, defendants often focused on proving:
- no copying,
- fair use,
- implied license,
- lack of registration,
- innocent infringement.
Now we may see much greater emphasis on:
"You waited too long."
Expect discovery requests asking about:
- Google searches
- reverse-image searches
- copyright enforcement programs
- licensing companies
- monitoring software
- social media activity
- trade publications
- industry newsletters
- AI monitoring tools
The plaintiff's diligence may become a major battleground.
What Should Professional Photographers Do?
1. Conduct Periodic Reverse Image Searches
No court has required monthly or annual searches.
But having a routine process demonstrates diligence.
Even annual searches may prove valuable.
2. Register Copyrights Promptly
Hayden registered decades after creating the sculpture.
Early registration preserves important remedies, including eligibility for statutory damages and attorney's fees in many cases.
3. Keep Good Records
Document:
- registrations
- licensing agreements
- cease-and-desist letters
- infringement investigations
- search efforts
- communications
A paper trail can later show reasonable diligence.
4. Don't Ignore Public Uses
Suppose your photograph appears:
- on CNN
- in the New York Times
- during the Super Bowl
- on a Fortune 500 homepage
- in a national advertising campaign
Years later, claiming:
"I never knew"
may become increasingly difficult.
Hayden suggests courts may examine whether those uses were sufficiently public that a reasonable copyright owner should have learned of them.
What About Social Media?
This may be the next frontier.
Imagine:
- your photograph receives millions of views,
- thousands of shares,
- goes viral,
- is featured by major influencers.
Can you still say you had no constructive knowledge?
Hayden doesn't answer that question directly.
But defendants will undoubtedly cite the opinion when arguing that viral publicity triggers constructive discovery.
AI Changes Everything
Artificial intelligence is making infringement detection dramatically easier.
Within a few years, copyright owners may routinely use AI systems that continuously search:
- websites
- marketplaces
- social media
- NFTs
- print-on-demand stores
- advertising campaigns
Ironically, the easier detection becomes, the stronger defendants' arguments may become that reasonable diligence required using those tools.
Future courts may ask:
"Why weren't you using readily available monitoring technology?"
That question may become increasingly common.
Does This Mean Every Photographer Must Hire Pixsy?
No.
The Second Circuit expressly rejected any rule requiring continuous monitoring.
But Hayden suggests that doing nothing for decades may become increasingly difficult to defend when widespread, public uses are involved.
Reasonableness—not perfection—remains the standard.
What About the DMCA Claim?
Hayden also argued that Koons' continued display of the works on his website with allegedly false copyright management information created new, separately accruing DMCA claims.
The Second Circuit declined to decide that issue because Hayden failed to preserve the argument in the district court. As a result, the court left open whether certain DMCA claims under 17 U.S.C. § 1202 may accrue independently from the underlying infringement claim.
That unresolved issue is one copyright litigators should continue watching.
Is This the Law Everywhere?
No.
This is a Second Circuit decision.
It is binding on federal courts in:
- New York
- Connecticut
- Vermont
Courts in other circuits are not required to follow it, although many may find its reasoning persuasive, especially because it applies a fact-intensive version of the discovery rule rather than creating a bright-line rule. Different circuits continue to approach copyright accrual and the discovery rule somewhat differently, and future Supreme Court guidance could further shape the law.
Final Thoughts
Hayden v. Koons is not simply another statute-of-limitations case.
It reflects a broader judicial expectation that copyright owners exercise reasonable diligence in protecting their intellectual property.
For photographers and visual artists, the lesson is straightforward:
- Register your work early.
- Maintain good records.
- Conduct periodic infringement searches.
- Investigate significant public uses when they come to your attention.
- Do not assume that lack of actual knowledge will indefinitely preserve your claims.
As image-search technology and AI monitoring become more sophisticated, courts may increasingly expect copyright owners to take reasonable, proactive steps to identify unauthorized uses. Hayden suggests that while the law does not require constant surveillance, it also does not reward decades of inaction where the alleged infringement was highly public and reasonably discoverable.
