Italian artist Maurizio Cattelan failed to stop a lawsuit alleging he copied another artist’s work in his viral sculpture of a banana taped to a wall.
A federal court in Miami on Wednesday denied Cattelan’s motion to dismiss American artist Joe Morford’s lawsuit alleging that Cattelan comedian infringes the copyright of one’s own works, Banana & Orange.
United States District Judge Robert N. Scola, Jr. stated in his ruling, “Luckily for the court, the question of whether a banana taped to a wall can be art is a metaphysical rather than a legal question. But the legal issue in court can be just as tricky – has Morford made sufficient allegations that Cattelan’s banana hurt his banana?”
Scola concluded that at this stage in the civil proceedings, Morford “reasonably asserted that Cattelans comedian bears a significant resemblance to […] elements of Banana & Orange.”
comedian too much fanfare – and ridicule – was exhibited at Perrotin’s booth at Art Basel Miami Beach in 2019. According to legal documents, the gallery sold three copies of the work and two proofs for a total of more than $390,000.
Morford, representing himself, alleges Cattelan plagiarized and inappropriately copied Banana & Orange, which he registered with the US Copyright Office in 2000. The work from Morford’s ‘Sculptures: Still Life’ series consists of two green rectangular panels, the upper one with a centered orange attached with gray tape, the lower one with a centered banana attached with gray tape. Tape was also used around the edges, creating a vertical diptych.
The judge found that Morford’s claim of similarity between the two works of art stood up to initial scrutiny. “In both works, a single piece of silver tape runs diagonally upwards from left to right and attaches to a wall a centered yellow banana sloping downwards from left to right,” he wrote. “In both works, the banana and the tape intersect roughly in the middle, although in Morford’s work the tape is less centered on the banana than in comedian.”
Attorneys for Cattelan, Adam Cohen and Dana Susman of the New York law firm Kane Kessler, argued that the additional elements of orange, the green background and the use of masking tape bordered on limits Banana & Orange “balance against a finding of substantial similarity.”
However, Scola noted that the taped banana “constitutes half of Morford’s work and occupies a prominent place” and that therefore “the alleged infringement of Morford’s banana is sufficient, quantitatively and qualitatively, to warrant a claim”.
Cattelan also claimed that the “coordination and arrangement” in Banana & Orange is “not original enough” to warrant copyright protection.
The judge disagreed, stating, “While using silver tape to attach a banana to a wall may not represent the highest level of creativity, its absurd and preposterous nature meets the ‘minimum level of creativity’ required to to be considered original.”
Cattelan also attempted to invalidate Morford’s copyright claim by saying that the fruit in Banana & Orange are synthetic, while the banana in comedian is real, so Morford “can’t own the idea of a real banana taped to a wall.”
However, Scola noted that “Morford cannot claim copyright on the idea of a banana taped to a wall […] Morford may be able to claim copyright for the expression of this idea.”
Another question asked is whether Cattelan would have known of its existence Banana & Orange. Morford claims that footage of the work has been available on YouTube since 2008, on Facebook since 2015 and on his own website since 2016; it was, he reports, “digitally accessed” in 25 countries.
However, Cattelan argued that access could not be established “by mere internet publication”. The judge found that “Morford does not need to show that Cattelan had access, only make a plausible claim that he did have access.”
Neither Cattelan’s attorneys, Adam Cohen and Dana Susman of Kane Kessler, nor Joe Morford responded to requests for comment as of press time.
The verdict came during a busy week for the Italian artist. A Paris court also recently dismissed a claim by wax artist Daniel Druet, who worked as Cattelan’s assistant, that he was the “sole author” of a number of the artist’s works.
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