Duct-taped banana artist loses motion to overturn copyright case

It was the $120,000 banana that broke the net.

Italian artist Maurizio Cattelan designed headlines, sparked controversy and impressed memes in 2019 with his piece “Comedian,” a banana he duct-taped to a wall at Art Basel Miami Seaside. But now, the notorious banana is the subject of a copyright lawsuit filed in federal courtroom in Miami.

California artist Joe Morford sued Cattelan very last calendar year, boasting that he copied his artwork of a banana taped to a wall. Cattelan’s bid to get the situation thrown out was rejected by a Miami federal choose.

“Can a banana taped to a wall be art? Should artwork be attractive? Artistic? Emotive? A banana taped to a wall may perhaps not embody human creative imagination, but it may well evoke some inner thoughts, excellent or bad,” U.S. District Judge Robert N. Scola wrote in his ruling final week. “In any party, a banana taped to a wall recollects Marshall McLuhan’s definition of art— ‘anything you can get absent with.’”

In his final decision, Scola wrote that when Morford simply cannot have the notion of a banana taped to a wall, he “may be capable to claim copyright of the expression of that concept.” The artwork is unique plenty of to obtain copyright safety, he claimed.

Sooner or later, the judge will have to choose if Cattelan experienced been getting away with plagiarizing Morford’s banana. The trial is scheduled to start off Could 2023.

In 2000, several years before Cattelan debuted “Comedian” at Art Basel, Morford registered his do the job “Banana & Orange” with the U.S. Copyright Business. Pictures of the artwork had been posted on his internet site, Facebook and YouTube.

“Banana & Orange” is a diptych of, properly, an orange and a banana. The fruits were being taped to environmentally friendly items of paper that had been bordered by tape. The orange is caught to the paper with horizontal silver tape. The banana is connected with a diagonal piece of tape.

Morford’s operate experienced existed for many years, but it was Cattelan’s probably spinoff rendition that went viral.

An version of “Comedian,” which was taped to Emmanuel Perrotin’s outer gallery wall at Art Basel, marketed for $120,000 to an art collector. The banana was back again in the headlines when a New York-primarily based functionality artist ate it. (The eaten banana was changed by another banana.)

Morford, who is representing himself in the situation, is trying to find about $390,000 in damages. Which is the amount of income Cattelan created from gross sales of the artwork and “artist proofs,” according to court docket files.

“I do not assert copyright declare to the thought of a banana duct-taped to a wall,” Morford wrote in an earlier court document. “People are cost-free to duct-tape all the bananas they want to a wall they are just not authorized to infringe on my expression — claiming it as their have primary artwork.”

In May well, Cattelan’s attorneys submitted a motion to dismiss the situation, listing many explanations why the choose must throw it out. The movement suggests that copyright laws really do not allow for individuals to declare possession of items like fruits or duct tape, and that Morford simply cannot confirm that Cattelan observed his operate ahead of building “Comedian.”

The motion goes on to describe the distinctions in between Morford and Cattelan’s works, down to the angle of the tape on the fruit.

Morford’s orange and banana were being “synthetic.” Cattelan’s banana was real. Morford’s fruits had been taped onto inexperienced paper. Cattelan’s banana was taped to a white wall.

Cattelan’s attorneys argued that the only factors the two artworks have in typical — the banana and the duct tape — can’t be guarded by copyright. For that reason, the legal professionals explained, the “mere mixture of a banana and duct tape” is not guarded both.

Judge Scola saw issues otherwise. Morford’s allegations are sufficient for his banana to get its working day in court.

“Thankfully for the Court docket, the problem of whether or not a banana taped to a wall can be art is additional a metaphysical question than a legal a person,” Scola wrote. “But the authorized problem right before the Courtroom could be just as hard — did Morford sufficiently allege that Cattelan’s banana infringes his banana?”

“While utilizing silver duct tape to affix a banana to a wall may perhaps not espouse the best degree of creativeness, its absurd and farcical nature fulfills the ‘minimal degree of creativity’ necessary to qualify as primary,” Scola wrote.

Cattelan was able to stay away from a separate lawsuit in France wherever a wax artist claimed he was the legitimate creator of several is effective that the Italian artist was accused of copying, which include a sculpture of Pope John Paul II obtaining strike by a meteorite.

But alas, the legal struggle above the bananas carries on.

This story was produced with economical guidance from The Pérez Relatives Foundation, in partnership with Journalism Funding Partners, as aspect of an independent journalism fellowship application. The Miami Herald maintains entire editorial regulate of this get the job done.

This story was initially revealed July 11, 2022 5:09 PM.