Cattelan’s banana does not infringe copyright, says a US court

As we reported last summer, Italian visual artist Maurizio Cattelan was sued last year for copyright infringement – and the much-anticipated court decision on this case was finally released a couple of weeks ago in Florida.

The artwork at the centre of the dispute is Cattelan’s world-famous “Comedian”, commonly known as “the” banana duct-taped to a wall. The artwork was exhibited in 2019 at Art Basel Miami, in Florida, and was sold for $120,000.

Following this, artist Joe Morford alleged that Cattelan had infringed his own 2000 artwork “Banana & Orange”, which was registered with the US Copyright Office and published on social media. The artwork was pretty similar to Cattelan’s “Comedian” as it also involved a banana duct-taped to a wall – however, some differences exist between both works (the wall is green in Morford’s work, there is a second fruit – an orange – above, the positioning of the fruit differs slightly, Morford uses plastic objects instead of real fruit…). Morford therefore sued Cattelan for copyright infringement, seeking $390,000 in damages.

Two weeks ago, a Miami federal judge ruled in favour of Cattelan, finding that Morford had not produced enough evidence to prove that Cattelan could have seen his work before creating “Comedian”. Additionally and interestingly, the judge found that most similarities between both works related to elements that were not protectable by copyright.

While this is a US ruling governed by US law, this decision is an interesting illustration of the basic principle of copyright law according to which copyright never protects ideas, but can only protect their expression if creative and original enough. In the case at hand, the judge considered that the mere idea of "affixing a banana to a vertical plane using duct tape” was not protectable by copyright.

The judge therefore focused on the few elements of the original work that it considered eligible for copyright protection (the work was successfully registered at the US Copyright Office, hence its overall protectability by copyright not being debated in detail): the green background, the masking tape used as a picture frame, the angle at which the banana was taped… and concluded that both works differed when it came to those copyrightable details. The lawsuit was therefore dismissed.

This is not the only time that Cattelan’s banana has made the headlines this year: a few weeks ago, a Seoul art student started a “banana drama” when he detached the banana from the wall of the Leeum Museum of Art in Seoul, which was exhibiting “Comedian”… and ate it “because he was hungry”. Upon being informed of the incident, Cattelan simply stated that there was “no problem” – the banana in “Comedian” is in any case replaced every few days.