Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 24, Issue 16
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Banana Taped to Wall–Copyright Lawsuit Loses on A-peel
By Kristyn Webb
In 2023, California artist Joe Morford lost his copyright infringement lawsuit against Italian artist Maurizio Cattelan. Morford claimed that Cattelan’s viral artwork “Comedian,” which features a banana duct-taped to a wall, was a copy of his own work, “Banana and Orange.” The district court granted summary judgment in favor of Cattelan, and recently, Morford lost his appeal of that decision.
Both artworks involve a banana taped to a flat surface, but Cattelan’s piece, “Comedian,” gained widespread fame and sold for over $100,000 at Art Basel in Miami. Morford argued that Cattelan had copied his work after it was posted online and featured on social media platforms.
To succeed in a copyright infringement claim, a plaintiff must prove either direct evidence of copying or establish that the alleged infringer had access to the work and that there are “probative similarities” between the two pieces. On appeal, the court held that Morford had failed to provide sufficient evidence that Cattelan had a reasonable opportunity to access “Banana and Orange.” While Morford’s “Banana and Orange” was generally available online, the court deemed this fact alone was too speculative to establish the necessary connection between the two artists. In other words, just because it was online, did not necessarily mean that Cattelan had ever seen “Banana and Orange.”
Morford might have been able to overcome this issue if he could show “Comedian” and “Banana and Orange” contained “striking similarities,”—a standard requiring that the similarities between the works are so unique that they could not have been created independently or by mere coincidence. Despite the resemblance between the two pieces, the appellate court noted significant differences—Morford’s work features both a banana and an orange, while Cattelan’s contains only a banana.
The appellate court concluded this was enough to affirm the district court’s early dismissal of the case and decided not to weigh in on the district court’s further findings about how many ways one might tape a banana to a wall.
Kristyn Webb is the Group Leader of Fishman Stewart’s Copyright Practice Group, and holds a Master’s Degree in Copyright Law from King’s College London.
Published September 20th, 2024
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