That’s Bananas! Copyright Lawsuit Over Maurizio Cattelan’s Duct-Taped Banana Work Survives Motion to Dismiss

Earlier this week, a federal judge in Florida denied Maurizio Cattelan’s motion to dismiss a lawsuit filed by another artist, Joe Morford, claiming that Cattelan’s Comedian (2019) (a banana duct-taped to a wall, famously exhibited at Art Basel Miami Beach) infringed his copyright in a work he created nearly 20 years earlier, Banana & Orange (a banana and an orange each duct taped to green paper). 

The Artworks:

Morford’s work is on the left; Catellan’s work is on the right (images sourced from the court’s decision)

By his motion to dismiss, Catellan argued that a banana and duct tape themselves are not copyrightable, no one can have a monopoly on the idea of duct taping a banana, and any copyright protection Morford has can only protect against essentially virtual copying because anything more would cheat the public domain.  Catellan also argued that the works have significant differences in the angles in which the fruit are taped, and the fact that Morford’s fruit were duct taped onto green painted paper and surrounded by masking tape. 

Notably, some courts adjudicating claims involving works incorporating elements of nature (particularly the Ninth Circuit (covering California)) have found that the scope of protection in such works is narrow.  See, e.g., Satava v. Lowry, 323 F.3d 805, 812 (9th Cir. 2003) (“[the plaintiff] may not prevent others from copying elements of expression that nature displays for all observers . . .[he] possesses a thin copyright that protects against only virtually identical copying”) (copyright infringement claim based on glass-in-glass jellyfish sculptures); Folkens v. Wyland Worldwide, LLC, 882 F.3d 768, 776 (9th Cir. 2018) (dismissing copyright infringement claim “because the similar element of [the two artworks], two dolphins crossing one another, one vertical and the other horizontal, is not protectable and the other particularities of the scene depicted are not the same.”).

In this case, the court rejected the argument that a “virtual identity” standard must be applied.  It held that, at this early stage of the case, Morford had done enough to plausibly allege that Comedian has a substantial similarity to the protected elements of Banana & Orange. Thus, his claim can survive for the time being; whether the claim will ultimately prevail will have to be determined at a later stage of the case.