Banana Taped To Wall Is Art Which Is Original Enough To Be Protected By the Copyright Act

Steven T. Lowe

In early 2021, fine artist Joseph Morford filed suit in the U.S. District Court for the Southern District of Florida against an artist named Maurizio Cattelan for copyright infringement. Morford alleged that Cattelan copied Morford’s art piece featuring a banana taped to a wall.

Morford registered his artwork with the Copyright Office in 2000 and made his work accessible through his website, Facebook, and YouTube. In 2019, Cattelan exhibited a similar work at an art fair in Miami Beach and sold three copies and two proofs of his work for over $390,000.

Both works contain a banana angled downward in the center with a single piece of silver duct tape across the banana. The duct tape and banana intersect at the midpoints of each, although Morford’s work is a little less centered.

On May 6, 2022, Cattelan filed a motion to dismiss Morford’s lawsuit.

The Court denied the motion to dismiss on July 6, 2022. The Court found that in order to succeed on a claim for copyright infringement, Morford had to establish ownership of a valid copyright and copying of aspects that are original. The Court was tasked with employing either the “substantial similarity test” or the “striking similarity test,” depending on whether it could be established that Cattelan had “access” to Morford’s work. If access could not be shown, then Morford would be required to show “striking similarity,” which is basically showing that the allegedly infringing work was a virtually identical copy of Morford’s work.

The Court found that Morford held valid copyright because although copyrights only protect original works, the required level of creativity is minimal, and the court found that Morford’s artwork satisfied that requirement. Second, by showing that his work was internet accessible for years before Cattelan ever exhibited his piece, Morford was able to “plausibly” allege that Cattelan had “access” to Morford’s work. This allowed the court to use the less stringent “substantial similarity” standard rather than the “striking similarity standard.”

The Court looked to whether there was a substantial similarity between the two works by using the “abstraction-filtration-comparison” test. The Court “dissected” the works into parts, filtered out “unprotectable elements” such as the idea of taping a banana to a wall, and then compared the works. The Court recognized that although Morford could not make a claim for infringement of the idea of duct-taping a banana to a wall, he is able to claim copyright protection in the “selection, coordination, and arrangement” of the elements of his work. After looking at the similarities of the works, qualitatively and quantitatively, the Court found that Morford’s complaint was sufficient to survive a motion to dismiss.

Morford is represented pro se.

Cattelan is represented by Julie Nevins and Adam Hoock of Stroock & Stroock & Lavan LLP and Adam Cohen and Dana Susman of Kane Kessler PC.

The case is Morford v. Cattelan, case number 1:21-cv-20039, in the U.S. District Court for the Southern District of Florida.

* Lowe & Associates (“The Firm”) is a boutique entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving copyright infringement, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.

Find us at our website at www.LoweLaw.com