Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 24, Issue 16
Share on Social
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
Related Content from Fishman Stewart
One of his most famous songs, “Lose Yourself” was recently at the center of a lawsuit. In 2019, Eminem’s publishing company Eight Mile Style sued Spotify claiming that Spotify streamed a number of its musical compositions without proper licenses.
One of the most common challenges is whether AI should be free to train on data that is protected by copyright and owned by third parties without first obtaining permission.
The U.S. Copyright Office (USCO) recently published its latest report on AI and “copyrightability.” In short, the USCO considers only some AI-generated works to be sufficiently creative as to deserve copyright protection, and thus, registration.
Back in the 1940’s assignments by independent contractors could be permanent and irrevocable. Things changed in 1976, when Congress overhauled the Copyright Act.
Generally, copyright protects the specific expression of ideas, such as the arrangement and presentation of visual elements, but it does not protect general concepts or styles.
In the age of the internet, memes are a universal language. A meme is a piece of content, typically an image, video, text, or a combination of these, that spreads rapidly across the internet, often with humorous, relatable, or satirical undertones.
In the US, Thanksgiving is quickly approaching. For many, Thanksgiving and (American) football go hand-in-hand, with the Detroit Lions’ game as much a staple of the holiday as turkey and pie. However, this year’s game arrives amid controversy: Lions’ legendary Hall of Famer Barry Sanders is facing a lawsuit alleging copyright infringement.
After three years of litigation, a court has held that the “beat that goes on” for Cher’s right to continue receiving royalties on songs created during her marriage to Sonny Bono, despite attempts by Sonny’s widow, Mary Bono, to invoke federal copyright termination rights to end those payments.
Watching scary movies is a time-honored Halloween tradition, and one of the greatest movies to watch this time of year is “Ghostbusters” which premiered in 1984.
Halloween is coming up at the end of this month, and we are celebrating a little early with the spooky copyright story of Jap Herron!
IDENTIFYING, SECURING AND ADVANCING CREATIVITY®
