Duct-taped banana artist loses motion to overturn copyright case

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

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

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

“Can a banana taped to a wall be art? Must art be beautiful? Creative? Emotive? A banana taped to a wall may not embody human creativity, but it may evoke some feelings, good or bad,” U.S. District Judge Robert N. Scola wrote in his ruling last week. “In any event, a banana taped to a wall recalls Marshall McLuhan’s definition of art— ‘anything you can get away with.’”

In his decision, Scola wrote that while Morford cannot own the idea of a banana taped to a wall, he “may be able to claim copyright of the expression of that idea.” The artwork is original enough to receive copyright protection, he said.

Eventually, the judge will have to decide if Cattelan had been getting away with plagiarizing Morford’s banana. The trial is scheduled to begin May 2023.

In 2000, years before Cattelan debuted “Comedian” at Art Basel, Morford registered his work “Banana & Orange” with the U.S. Copyright Office. Images of the artwork were posted on his website, Facebook and YouTube.

“Banana & Orange” is a diptych of, well, an orange and a banana. The fruits were taped to green pieces of paper that were bordered by tape. The orange is stuck to the paper with horizontal silver tape. The banana is attached with a diagonal piece of tape.

Morford’s work had existed for years, but it was Cattelan’s potentially derivative rendition that went viral.

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

Morford, who is representing himself in the case, is seeking over $390,000 in damages. That’s the amount of money Cattelan made from sales of the artwork and “artist proofs,” according to court documents.

“I do not assert copyright claim to the idea of a banana duct-taped to a wall,” Morford wrote in an earlier court document. “People are free to duct-tape all the bananas they want to a wall; they are just not allowed to infringe on my expression — claiming it as their own original artwork.”

In May, Cattelan’s lawyers filed a motion to dismiss the case, listing several reasons why the judge should throw it out. The motion says that copyright laws don’t allow people to claim ownership of things like fruits or duct tape, and that Morford can’t prove that Cattelan saw his work before creating “Comedian.”

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

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

Cattelan’s lawyers argued that the only elements both artworks have in common — the banana and the duct tape — cannot be protected by copyright. Therefore, the lawyers said, the “mere combination of a banana and duct tape” is not protected either.

Judge Scola saw things differently. Morford’s allegations are enough for his banana to get its day in court.

“Thankfully for the Court, the question of whether a banana taped to a wall can be art is more a metaphysical question than a legal one,” Scola wrote. “But the legal question before the Court may be just as difficult — did Morford sufficiently allege that Cattelan’s banana infringes his banana?”

“While using silver duct tape to affix a banana to a wall may not espouse the highest degree of creativity, its absurd and farcical nature meets the ‘minimal degree of creativity’ needed to qualify as original,” Scola wrote.

Cattelan was able to avoid a separate lawsuit in France where a wax artist claimed he was the true creator of several works that the Italian artist was accused of copying, including a sculpture of Pope John Paul II getting hit by a meteorite.

But alas, the legal battle over the bananas continues.

This story was produced with financial support from The Pérez Family Foundation, in partnership with Journalism Funding Partners, as part of an independent journalism fellowship program. The Miami Herald maintains full editorial control of this work.

This story was originally published July 11, 2022 5:09 PM.