When Italian artist Maurizio Cattelan taped a banana to a wall at Art Basel Miami Beach in 2019 and sold it for $120,000, critics said it wasn鈥檛 art. In a lawsuit years later, another artist said it wasn鈥檛 original.
California-based artist Joe Morford sued Cattelan in 2021 over copyright infringement, claiming that Cattelan copied his artwork of a banana taped to a wall. On Monday, a federal judge in Miami ruled in favor of Cattelan and his viral banana, ending the years-long legal battle that had the judge questioning the meaning of art.
鈥淎rt may not be easily definable, but life does imitate it 鈥� even in its absurdities,鈥� Judge Robert N. Scola said in his opinion.
In 2001, Morford made 鈥淏anana & Orange,鈥� an artwork of a fake orange and a fake banana stuck onto a green background with silver tape. Almost two decades later, Cattelan gained international acclaim and infamy for his artwork called 鈥淐omedian,鈥� which was a real banana taped to a wall.
Dana Susman, one of Cattelan鈥檚 attorneys from lawfirm Kane Kessler, said her and her client are pleased with the court鈥檚 decision.
鈥淚t鈥檚 an important case as it sits at the intersection of copyright and art law at a critical time in the art world,鈥� she told the Herald. 鈥淲e think the court got it absolutely right.
An edition of 鈥淐omedian,鈥� which was taped to Emmanuel Perrotin鈥檚 outer gallery wall at Art Basel, made headlines and inspired countless memes when Controversy struck again when a New York-based performance artist went to Art Basel, . It was later replaced by another banana.
Morford, who represented himself in the case, sought over $390,000 in damages, the amount of money Cattelan made from sales of the artwork and 鈥渁rtist proofs,鈥� according to court documents. Last summer,
鈥淚 do not assert copyright claim to the idea of a banana duct-taped to a wall,鈥� Morford wrote in an earlier court document. 鈥淧eople are free to duct-tape all the bananas they want to a wall; they are just not allowed to infringe on my expression 鈥� claiming it as their own original artwork.鈥�
Morford did not immediately responded to a request for comment.
Morford argued that Cattelan had 鈥渁 reasonable opportunity鈥� to have seen 鈥淏anana & Orange鈥� because images of it were available on Youtube, Facebook and Blogspot, according to court documents. Morford registered a copyright for his work in 2020.
Cattelan denied ever seeing Morford鈥檚 artwork. Instead, Cattelan argued, 鈥淐omedian鈥� was inspired by one of his own previous works for New York Magazine, where he depicted a banana hanging from a billboard with red tape in 2018. Cattelan then had his employees at his Italian studio 鈥渢est out鈥� taping bananas to the wall 鈥渁t different heights and angles,鈥� according to court documents. He picked the angle that was just right.
Ultimately, Scola ruled that Morford did not prove that Cattelan ripped off 鈥淏anana & Orange鈥� after seeing it online and that the similarities between the two artworks don鈥檛 amount to copyright infringement.
鈥淗is evidence amounts to no more than proof that his work was available on one Facebook post, one YouTube video, and one blog post,鈥� Scola wrote in his decision. 鈥淣owhere is Morford able to demonstrate that 鈥楤anana and Orange鈥� enjoyed any particular or meaningful level of popularity; in fact, the evidence cited supports the opposite finding, that it remained a relatively obscure work with very limited publication or popularity.鈥�
Still, there are some parts of Morford鈥檚 artwork that are protected by copyright, the judge said: The green panels behind the orange and the banana, the masking tape used as a border on each panel, the placement of the orange above the banana, and the angle of the banana with its stalk on the left side.
Yes, the artworks are similar, the judge decided. But not similar enough.
This story was produced with financial support from The P茅rez Family Foundation, in partnership with Journalism Funding Partners, as part of an independent journalism fellowship program. The Miami Herald maintains full editorial control of this work.
