Art Law Group co-chair Megan Noh discussed an ongoing copyright discussion currently before Manhattan federal court as it relates to the use of an artistic sculpture by contemporary artist Jeff Koons in an erotic photograph series titled "Made in Heaven." Koons claims the sculpture, created by Michael Hayden, was intended as a prop for sexual use. Hayden argues that Koons infringed upon his rights by portraying his artistic creation without permission.
According to Reuters:
Megan Noh, co-chair of Pryor Cashman's art law group, noted in an email that the separability standard set by the Supreme Court in its cheerleader uniform decision "is relatively low," requiring only that a decisionmaker is able to imagine that a pictorial, graphic or sculptural element could exist as its own work, apart from the useful article.
Noh wrote that such an analysis "requires the court to engage in some imaginative deconstruction. For example, could Hayden have designed this encircled snake element as a sculpture with a hollow center, or could he have wrapped the same snake around a rock-like central element with a rounded or jagged top incapable of being used as a surface for pornographic performance?"
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