On the left, Banana & Orange by Joe Morford; and on the right, Comedian by Maurizio Cattelan (photo courtesy of the District Court for the Southern District of Florida)
Not long ago, I wrote about Maurizio Cattelan’s absurdist conceptual work Comedian, consisting of a banana duct taped to a wall. Upon seeing a licensed version of the work displayed at the Leeum Museum in South Korea, one visitor decided to remove the tape and eat the banana while his friend recorded the incident on his phone. Comedian, in a way, is meant to be provocative, but one artist may have taken things a little too seriously. In 2020, the American artist Joe Morford sued Cattelan, alleging that Comedian was a copy of his 2002 work Banana & Orange, consisting of plastic replicas of the titular fruits duct taped to green panels. Cattelan, however, claims that he had not even heard of Morford before the lawsuit and had independently thought of Comedian as a concept as early as 2018. Cattelan’s studio assistant verified this claim in court.
According to Morford, Cattelan clearly plagiarized his work because of the availability of images of Banana & Orange online and composition similarities. Morford posted photos of Banana & Orange on several online platforms, including Facebook, Blogspot, and YouTube. Therefore, Morford claims that this proves that Cattelan could view the work and steal its concept. Furthermore, he claimed that Comedian and Banana & Orange are so similar that it is likely that Cattelan’s work was heavily influenced by or stolen from Morford.
Judge Robert Scola of the District Court for the Southern District of Florida granted summary judgment in favor of Cattelan, thereby dismissing Morford’s case. On Morford’s first argument, Scola wrote that just because images of Banana & Orange were available online, that does not indicate that Cattelan viewed these images; or that “mere availability, and therefore possibility of access, is insufficient to prove access.” Regarding the similarities between Banana & Orange and Comedian, Scola found that Comedian does not constitute plagiarism because “there are only so many ways to express the concept of a banana taped to a wall.” Morford alleged that placing the tape perpendicularly to the banana was one of the elements Cattelan copied from Banana & Orange. But according to Scola, this is the rather obvious way to execute the work. “Placing the tape parallel with the banana would cover it. Placing more than one piece of tape over the banana, at any angle, would necessarily obscure it. 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.” The court did, however, find that there were protected elements of Morford’s work, such as the green panels, the use of an orange, and the use of masking tape to hang the panels onto a wall. But none of these elements are present in Comedian. Morford even went as far as to say that both bananas were placed at similar angles, indicating possible plagiarism. To this, Scola responded, “There are only so many angles at which a banana can be placed on a wall (360, to be precise, unless one breaks the measurements down beyond degrees—but making such a minute distinction would be reaching a point of absurdity best left out of the courts and in the hands of artists).” So, it seems ‘close enough’ doesn’t really cut it.
The court found that Comedian is not a copy or plagiarized version of Banana & Orange, but rather the two are different expressions of the same idea. When you break down each work into its component parts, they are quite different. So, an artist cannot own and claim copyright over the idea of taping a banana to a wall. The art world can breathe a sigh of relief.