Ask Dr. Copyright

Dear Doc:

Now that the Supremes have settled the whole fair use debate (except for all the issues that they left unsettled, and the new issues that their decision in the Warhol case created…), what’s this that I hear about bananas?

Froot Loopy

Dear Loopy:

Did you know that “Froot Loops” is called that because they contain no fruit and Kellogg’s was sued for false advertising? But the Doc digresses…

It seems that duct taping fruit to a wall or other surface is now considered “art” by some of the cognoscenti (look it up), and a certain conceptual artist, Joe Morford, duct taped a realistic plastic orange and banana to green boards and called it “art” in 2001. Along came a certain Italian, Maurizio Cattelan, who describes himself as a “visual and conceptual artist.” In 2019, Señor Cattelan duct taped a real banana directly to a real wall and, as one might expect, called it “art.” He called his artwork “Comedian” and the wall in question was at the Art Basel Miami Art Fair. Cattelan charged $120,000 for his artwork. (Good work, if you can get it, says the Doc.)

The two works are shown in the photo below.

As anyone who has ever read a Dr. Copyright article knows, this situation simply screams “LAWSUIT!!”, and sure enough, Mr. Morford sued Señor Cattelan for copyright infringement in Federal Court. After extensive discovery and the filing of Summary Judgment Motions on both sides, the case has finally come to a conclusion. Does a taped banana infringe a taped plastic banana? Does the green board matter? And what about the plastic orange? Inquiring readers want to know!

According to Judge Robert N. Scola Jr.’s June 12 opinion, Cattelan testified that his inspiration for Comedian was drawn from a work that he created for New York Magazine in 2018 that depicted a banana hanging from a billboard with red duct tape. He said he was not aware of Morford’s Banana and Orange and had not heard of Morford before the lawsuit.

Morford argued that Banana and Orange could have been seen by Cattelan because it was posted on Facebook, in a YouTube video and in a blog post. But Judge Scola ruled that access to a copyrighted work (a necessary element of the claim of infringement) can’t be proven simply because a defendant had some possible opportunity to see it.

“A work’s mere presence on the internet alone,” Scola said, “is insufficient to demonstrate access without some additional proof that the defendant had some relevant nexus to the plaintiff’s work or that the plaintiff’s work enjoyed some meaningful level of popularity.”

The evidence, said the judge, shows that Morford’s Banana and Orange remained, “a relatively obscure work with very limited publication or popularity.”

Judge Scola gave two more reasons for dismissing the case: Similarities between the artworks are lacking, and Cattelan offered proof of his independent creation of Comedian.

Morford can’t claim a copyright in the idea of affixing a banana to a vertical plane using duct tape, but he can copyright aspects of his work, Scola said. Those aspects include the green panel to which his plastic fruit is taped, the duct tape border, the angle of the banana and the placement of its stalk. The only common feature is the placement of the banana stalk on the left-hand side of the artwork, which isn’t significant enough to support a finding of infringement, Judge Scola said.

“The lack of similarity between the two works is now clear and inescapable.”

We now return you to your regularly scheduled sugary breakfast cereal and Loony Toonz shorts (which we intentionally misspell because we at LW&H do not want to be accused of false advertising, or anything else, for that matter). If you have an intellectual property issue, call us. If we are not taping froot to a wall, we will answer, for sure.

Until next month, 

The “Doc”

— Lawrence A. Husick, Esq.