IP Law Daily, COPYRIGHT—S.D. Fla.: Creator of banana taped to a wall artwork states infringement claim against Italian artist Maurizio Cattelan, (Jul 12, 2022)

By Matthew Hersh, J.D.

But the plaintiff may face an uphill battle in later stages of the case.

An artist who duct-taped a banana to a wall plausibly alleged that Italian artist Maurizio Cattelan infringed on his work because the bananas in the two works were angled in the same way, and the duct tape that held them up intersected the fruit at similar midpoints, the federal court in Miami has held. But the court, denying Cattelan’s motion to dismiss in an opinion that generated immediate headlines in the art world, telegraphed that the claim was at risk of eventually foundering on the legal doctrines of access and merger (Morford v. Cattelan, July 6, 2022, Scola, R.).

The lawsuit involves an artwork entitled “Banana & Orange” by Glendale, California-based artist Joe Morford. The artwork depicts an orange and a banana, each of which is taped to a green background by a single strand of silver duct tape. The artist registered a copyright in his work in 2000 and featured the work on his website as well as on social media sites such as Facebook and YouTube.

The copyright holder, acting pro se, sued prominent Italian artist Maurizio Cattelan over his own “banana-centric art,” in the words of the court. Cattelan is known for satirical works of art, such as Errotin, le vrai Lapin (in which he “convinced gallerist and notorious womanizer Emmanuel Lapin to wear a giant pink rabbit costume shaped like a phallus”), Daddy Daddy (depicting Pinocchio floating face down in a pool), and La Nona Ora (depicting a wax replica of the Pope being struck down by a meteor). The accused banana artwork, as with the copyright owner’s work, depicted a banana duct-taped to a wall at an angle, although it omitted the green background and the complementary orange found in the original. Cattelan’s banana sculpture, titled “Comedian,” has garnered international attention.

Cattelan moved to dismiss for failure to state a claim, leading to this opinion.

Originality. The court denied the motion to dismiss, finding that the copyright holder adequately pleaded originality as well as substantial similarity.

As to originality, the court began with a colorful digression into the nature of the artwork at question here: “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. In any event, a banana taped to a wall recalls Marshall McLuhan’s definition of art—'anything you can get away with.’ To that end, bananas have come to represent a type of irreverence in pop culture—from vaudeville to Andy Warhol, artists have wielded bananas to expand the boundaries of art.”

But “judges are not deputized art critics,” the court noted, “and the originality bar is appropriately low.” Under that low threshold, the court concluded, the artwork was sufficiently original to merit protection under the Copyright Act. While using silver duct tape to affix a banana to a wall “may not espouse the highest degree of creativity,” the court noted, “its absurd and farcical nature meets the minimal degree of creativity needed to qualify as original.”

Substantial similarity. The court also found that the copyright owner adequately alleged that Cattelan’s work was substantially similar—although its opinion came with some warnings that the infringement claim may face difficulties ahead.

The court first found that the copyright owner had adequately alleged access, at least on the generous standard application on a motion to dismiss. The copyright owner’s only allegation of access, at least at this stage, was his contention that the artwork was publicly available on the internet and that it had been digitally accessed in 25 countries. To be sure, the court noted, this evidence alone would be insufficient to withstand summary judgment, as “access cannot be established by mere Internet publication.” But at the motion to dismiss stage, the court noted, the allegation was adequate, and the copyright owner was entitled to have “the opportunity to establish evidence showing the extent of internet presence in support of access.” Thus, the claim would not founder on the issue of access—at least for the present.

Substantial similarity was also adequately pled, the court held—although the court here too telegraphed that the complaint may face challenges in future stages. The claim required first a dissection of the work into components that were protectible and not protectible. To be sure, the court noted, the mere idea of a banana taped to a wall was not itself protectible. But Cattelan allegedly copied a combination of different elements of the original artwork, including not only the use of a banana held up by silver duct tape but also the fact that the tape and banana were set at similar angles and intersected each other more or less at the midpoint in each work. Although no one element alone was protectible, the court found, the alleged taking of this combination of elements was enough, at least at the present stage, to enable the claim to get to discovery.

But the court’s opinion came with a pungent warning that the claim might not have survived the motion to dismiss had Cattelan made the right legal arguments—and might well fail in the future as a result. “There are only so many choices an artist can make in colors, positioning, and angling when expressing the idea of a banana taped to a wall,” the court noted, underscoring the importance of “the merger doctrine—where the idea and the expression of that idea merge.” But Cattelan did not argue that the merger doctrine applied, so the court did not consider it.

The Case is No 1:21-cv-20039-RNS.

Attorneys: Joe Morford, pro se. Adam M. Cohen (Kane Kessler, P.C.) for Maurizio Cattelan.

Cases: Copyright FloridaNews GCNNews