An Artist Sued Maurizio Cattelan for Allegedly Copying His Duct-Taped Banana. A Miami Judge Just Allowed the Case to Proceed

Italian artist Maurizio Cattelan unsuccessful to halt a lawsuit proclaiming that he copied a further artist’s get the job done in his viral sculpture of a banana duct-taped to a wall. 

A federal courtroom in Miami on Wednesday denied Cattelan’s motion to dismiss the litigation brought by American artist Joe Morford alleging that Cattelan’s Comic infringes the copyright of his individual do the job, Banana & Orange.

United States District Decide Robert N. Scola, Jr., mentioned in his ruling: “Thankfully for the court docket, the query of irrespective of whether a banana taped to a wall can be artwork is far more a metaphysical issue than a authorized one. But the lawful concern just before the court may possibly be just as difficult—did Morford sufficiently allege that Cattelan’s banana infringes his banana?” 

Scola concluded that, at this stage in the civil go well with, Morford has “adequately alleged that Cattelan’s Comedian has a considerable similarity to […] components of Banana & Orange.”  

Comedian was exhibited to a great deal fanfare—and derision—on Perrotin’s stand at Art Basel Miami Seaside in 2019. In accordance to lawful paperwork, the gallery sold a few copies of the work, as effectively as two proofs, for a put together complete of additional than $390,000. 

Morford, who is representing himself, statements that Cattelan plagiarized and inappropriately copied Banana & Orange, which he registered with the U.S. Copyright Business in 2000. The piece, from Morford’s “Sculptures: However Life” collection, comprises two environmentally friendly rectangular panels, the major 1 with a centered orange hooked up to it with gray duct-tape, the base one with a centered banana connected to it with gray duct-tape. Tape was also applied all-around the borders, developing a vertical diptych. 

A side-by-side comparison of Morford's and Cattelan's works. Photo via court documents.

A aspect-by-aspect comparison of Morford’s and Cattelan’s performs. Photograph by using court documents.

The decide discovered that Morford’s allegation of similarity between the two artworks stood up to initial scrutiny. “In both functions, a solitary piece of silver duct tape runs upward from still left to proper at an angle, affixing a centered yellow banana, angled downward remaining to correct, from a wall,” he wrote. “In each functions, the banana and the duct tape intersect at roughly the midpoints of just about every, although the duct tape is fewer centered on the banana in Morford’s perform than in Comedian.”

Cattelan’s attorneys, Adam Cohen and Dana Susman of the New York agency Kane Kessler, argued that the supplemental elements of the orange, the green history, and the use of masking tape borders in Banana & Orange “weigh against a acquiring of significant similarity.” 

But Scola observed that the duct-taped banana “constitutes fifty percent of Morford’s function and has a notable positioning” and that thus “the alleged infringement of Morford’s banana is enough, quantitatively and qualitatively, to condition a assert.” 

Cattelan also contended that the “coordination and arrangement” in Banana & Orange is “not adequately original” to warrant copyright protection. 

The judge disagreed, stating: “While applying silver duct tape to affix a banana to a wall might not espouse the highest diploma of creative imagination, its absurd and farcical character satisfies the ‘minimal diploma of creativity’ required to qualify as initial.” 

Cattelan further sought to invalidate Morford’s copyright assert by saying that the fruits in Banana & Orange are artificial whilst the banana in Comic is serious, so Morford “cannot have the idea of a serious banana duct-taped to a wall.” 

On the other hand, Scola identified that whilst “Morford can’t assert copyright in the idea of a banana taped to a wall […] Morford may be equipped to claim copyright in the expression of that strategy.” 

One more issue set forward is regardless of whether Cattelan would have been knowledgeable of the existence of Banana & Orange. Morford claims that footage of the function has been available on YouTube due to the fact 2008, on Facebook given that 2015, and on his possess web page because 2016 it has, he experiences, been “digitally accessed” in 25 international locations. 

But Cattelan argued that accessibility could not be recognized “by mere World wide web publication.” The decide discovered that “Morford want not build that Cattelan experienced obtain, but only plausibly allege that he experienced accessibility.” 

Neither Cattelan’s legal professionals Adam Cohen and Dana Susman from Kane Kessler, nor Joe Morford, responded to requests for comment by publication time. 

The ruling came throughout a chaotic lawful 7 days for the Italian artist. A Paris courtroom also just lately turned down a assert from the wax artist Daniel Druet, who worked as an assistant to Cattelan, that he is the “sole author” of a quantity of the artist’s is effective. 

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Kenneth Proto

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