A federal judge has ruled against a Miami artist who claims Maurizio Cattelan stole his idea of making banana art out of duct tape.
When Perrotin sold The sculpture of Cattelan Actor for $120,000 at Art Basel Miami Beach in 2019, it immediately became a viral sensation. But artist Joe Morford said he made a version of the work in 2001 and sued the Italian artist for copyright infringement.
In Morford’s work, the artist taped a plastic orange and a plastic banana to panels hung on the wall. In 2020, he successfully registered a copyright for his work, and Cattelan’s motion to dismiss the case was denied by U.S. District Judge Robert N. Scola, Jr., who recognized as “substantial similarity”.
But Morford’s luck turned there. In his decision, Judge Scola pointed out various characteristics that distinguished the two works. Notably, Banana and Orange has a green background and tape border and the banana has only been placed at a slight angle to the horizontal. On the other hand, Cattelan Actor has no specified background, no border, and a much stronger angle. The fact that both works featured bananas with the stem on the left side was therefore “insignificant and insufficient to support a finding of legal copying”, he wrote.
A side-by-side comparison of the works of Morford and Cattelan. Photo via court documents.
In the judge’s estimation, Morford was also unable to prove that Cattelan used this 2001 work as a source for his own creation. It had been made available for purchase online, but otherwise only appeared briefly in a Youtube video uploaded in 2008 and in one-off posts on Facebook and Blogspot in 2015 and 2016, respectively. The Italian artist also denied having ever heard of Morford.
“A plaintiff cannot prove access solely by showing that a work was disseminated in places or contexts where the defendant may have found it,” Scola summed up. “Nowhere is Morford able to demonstrate that Banana and Orange enjoyed a particular or significant level of popularity; in fact, the cited evidence supports the opposite conclusion, that it was a relatively obscure work with very limited publication.
Cattelan says he did Actor specially for Art Basel Miami Beach, and was inspired by another work in which a banana hangs from a billboard with red tape that was featured in New York magazine in 2018.
Since its creation, ActorThe worldwide notoriety of was boosted by not one but two instances of it being ripped from the wall and eaten. First at the fair, during an unauthorized “performance art work” by fellow artist David Datuna, and earlier this year, when a South Korean art student claimed to have been hungry at the Leeum Museum of Art in Seoul.
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