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’t art. In a lawsuit years later, another artist said it wasn’t 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.
“Art may not be easily definable, but life does imitate it — even in its absurdities,” Judge Robert N. Scola said in his opinion.
In 2001, Morford made “Banana & Orange,” 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 “Comedian,” which was a real banana taped to a wall.
Dana Susman, one of Cattelan’s attorneys from lawfirm Kane Kessler, said her and her client are pleased with the court’s decision.
“It’s an important case as it sits at the intersection of copyright and art law at a critical time in the art world,” she told the Herald. “We think the court got it absolutely right.
An edition of “Comedian,” which was taped to Emmanuel Perrotin’s outer gallery wall at Art Basel, made headlines and inspired countless memes when an art collector bought it for $120,000. Controversy struck again when a New York-based performance artist went to Art Basel, ripped the banana off the wall and ate it. 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 “artist proofs,” according to court documents. Last summer, the judge rejected Cattelan’s bid to dismiss the case.
“I do not assert copyright claim to the idea of a banana duct-taped to a wall,” Morford wrote in an earlier court document. “People are free to duct-tape all the bananas they want to a wall; they are just not allowed to infringe on my expression — claiming it as their own original artwork.”
Morford did not immediately responded to a request for comment.
Morford argued that Cattelan had “a reasonable opportunity” to have seen “Banana & Orange” 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’s artwork. Instead, Cattelan argued, “Comedian” 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 “test out” taping bananas to the wall “at different heights and angles,” according to court documents. He picked the angle that was just right.
Ultimately, Scola ruled that Morford did not prove that Cattelan ripped off “Banana & Orange” after seeing it online and that the similarities between the two artworks don’t amount to copyright infringement.
“His evidence amounts to no more than proof that his work was available on one Facebook post, one YouTube video, and one blog post,“ Scola wrote in his decision. “Nowhere is Morford able to demonstrate that ‘Banana and Orange’ 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.”
Still, there are some parts of Morford’s 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 Pérez 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.
