Banana art slips through court
Judge peels away copyright complaint against artist
Some were enticed by the peculiar, yet simple, art. Others questioned if it could even be classified as “art.”
It was a banana against a white wall, held in place by a single piece of duct tape. The piece, “Comedian” by Italian artist Maurizio Cattelan, sold for $120,000 at Art Basel Miami Beach in 2019 and gained notoriety as copies of it have been shown, sold and eaten since it was first made.
But in 2021, American artist Joe Morford filed a complaint against Cattelan, saying “Comedian” had been plagiarized from a piece he made more than two decades ago called “Banana and Orange.” Morford’s art featured an orange and banana duct-taped against green rectangles. Cattelan’s piece, Morford argued, was an infringement on “Banana and Orange,” and he asked in his complaint to be awarded the profits from “Comedian.”
Now, a federal judge has ruled in Cattelan’s favor, ending the years-long debate on whether the artist’s famed, fruit-forward art was copyright infringement. Cattelan proved that he had independently created “Comedian,” U.S. District Judge Robert Scola Jr. wrote in an 18-page ruling.
Morford, who is based in California, created “Banana and Orange” in 2000, according to copyright records.
He gave the court evidence that the work could be seen in a video on YouTube in 2008 and that a photo of it had been shared on Facebook in 2015. He also gathered analytics showing that people in 25 countries had viewed it online. In 2020, “Banana and Orange” was registered with the U.S. Copyright Office.
Cattelan created “Comedian” in 2019 for Art Basel Miami Beach. According to court documents, “Comedian” was inspired by another piece he had created for New York Magazine the year before that featured a banana against a white background with a piece of red duct tape across it.
For “Comedian,” Cattelan asked his employees to test taping bananas at different heights and angles at his studio in Italy before he decided on the final specifications, according to court documents.
Editions of the final piece were exhibited at Art Basel Miami Beach, where a performance artist later peeled one banana off the wall and ate it. Ultimately, the installation was cut short after it caused “several uncontrollable crowd movements” and its placement “compromised the safety” of other artwork, a gallery that represents Cattelan said in a social media post. In a similar incident in April, an art student tore the banana off an exhibit in Seoul and ate it.
Cattelan said he had never heard of “Banana and Orange” or its creator until the lawsuit, according to the ruling.
Although imagery of “Banana and Orange” had been available on various platforms years earlier, Scola ruled that Morford failed to show that Cattelan had viewed it, writing that “mere availability, and therefore possibility of access, is not sufficient to prove access.”
There were four parts of Morford’s “Banana and Orange” that were elements protected by copyright, Scola wrote. First, the green panels behind both fruits. Second, the masking tape Morford used as a border. Then, the orange being placed above the banana, both in the center of the panels. And finally, the angle of the banana with its stalk on the left side pointing up.
When comparing those elements to “Comedian,” only one was shared in both pieces: the placement of the banana. But that alone, Scola wrote, was “insignificant and insufficient to support a finding of legal copying.”
When asked how he got his banana idea, Cattelan told the art magazine Gagosian Quarterly in 2022 that he wanted to make something that was not a painting but that “could compete with a painting” — something recognizable to anyone.