Banana Duct-Taped to Wall Not Copyright Infringement
In 2019 Maurizio Cattelan, a conceptual artist, created a work titled “Comedian,” which consisted of a banana duct-taped to a wall. He was sued by another conceptual artist, Joe Morford, who accused Cattelan of infringing the copyright on Morford’s word “Banana and Orange,” which depicted an artificial orange and an artificial banana duct-taped to pieces of green cardboard and mounted on a wall with masking tape. (The two works are depicted below.) Today a Federal Court in Florida dismissed the lawsuit, finding that Morford had not shown that Cattelan had access to Morford’s work, and that Cattelan’s work “Comedian” did not copy protectable elements of “Banana and Orange.”
Copyright protects a work’s original, expressive elements, not to the underlying ideas expressed therein. The court found that the common expression of the two works, that of taping a banana to a wall with a single piece of tape to form an “X” shape was not protectable by copyright, since that expression merges with the concept of taping a banana to a wall. As the court stated, “An artist seeking to tape a banana (or really, any oblong fruit or other household object) to a wall is therefore left with ‘only a few ways of visually presenting the idea’—all of which involve a piece of tape crossing the banana at some non-parallel angle.”
When it came to protectable elements, the court only found one common protectable element between the two works, that of the bananas of both works being situated with the banana’s stalk on the left side of the work. This feature was found to be insignificant, and insufficient to support a finding of copying.
Cattelan also contended that he lacked access to Morford’s earlier piece, and he put forward evidence that he had independently created his banana-and-duct-tape work, evidence that Morford was not able to rebut. As a result, Morford’s suit was dismissed on summary judgment, with a finding of no copyright infringement.
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