A Florida judge threw out artist Joe Morford copyright infringement lawsuit against Maurizio Cattelan, in which Morford claimed to have had the idea for an artwork featuring a taped banana nearly 20 years before Cattelan’s viral sensation Actor (2019) debuted at Art Basel in Miami Beach. In a June 9 ruling, Judge Robert N. Scola, Jr., a U.S. District Judge for the Southern District of Florida, granted Cattelan’s motion for summary judgment, closing the case.
Morford’s lawsuit hinged on similarities between Cattelan Actor and his own work from 2001, Banana and Orange, which features plastic replicas of the titular fruit duct glued to two green panels. However, Judge Scola ruled that the similarities between the works were insufficient, and Morford’s claim that Cattelan might have seen his work and been influenced by it was unconvincing, to pursue claims of copyright infringement. ‘author.
“Actor simply contains two (sic) many differences from Banana and Orange: the banana used, the angle at which it is placed, the method by which it is glued to the bottom, the bottom itself and the rigorous standards that Cattelan has developed for Actor‘s display,” concludes Justice Scola’s decision. “Finding otherwise would further limit the already limited number of ways a banana can be legally stuck to a wall without infringing on Morford’s work.”
In addition to pointing out similarities between the works, Morford had claimed that Cattelan might have encountered Banana and Orange in one of the many sites online – on Facebook, YouTube and a blog post. Cattelan, for his part, claimed he had never heard of Morford before being sued by him and had developed an early version of the work independently in 2018 as a hedging commission for New York Magazine. In a statement, one of Cattelan’s studio employees, Jacopo Zotti, confirmed this.
“Cattelan is the only party that has advanced evidence in defense of independent creation,” Scola wrote in its ruling. “The court can, and should, credit his statement and the statement of his employee.
by Joe Morford Banana and Orange (left) and Maurizio Cattelan Actor Court documents
The judge’s ruling goes into detail regarding two formal similarities on which Morford’s claim was based: the angle at which each work’s banana is attached to the vertical surface and the angle at which the tape passes through the banana. In each case and in remarkably precise detail, the judge explains why such accusations are unconvincing.
“There are only a limited number of angles at which a banana can be placed on a wall (360, to be precise, unless one breaks down the measurements beyond degrees – but to make a distinction such thoroughness would amount to reaching a point of absurdity that is best left out of the courts and into the hands of artists),” Judge Scola wrote. “To find that Morford’s and Cattelan’s different angle selections were ‘close enough’ to achieve substantial similarity would necessarily impose a significant legal limit on the number of ways in which a banana can be glued to a wall without copying the work of a another artist.”
Regarding the placement of the tape, the judge wrote, “It is, to put it bluntly, the obvious choice. Placing the ribbon parallel to the banana would cover it. Placing more than one piece of tape over the banana, at any angle, would necessarily obscure it. An artist looking to tape a banana (or indeed, any oblong fruit or other household object) to a wall is therefore left with “only a few ways to present the idea visually” – all of which involve a piece of tape running through the banana. at a non-parallel angle.
Cattelans Actor was a instant feeling at Art Basel in Miami Beach in 2019, where he made his debut on the Perrotin booth. Eventually, all three editions of the work, priced at $120,000 each, sold out; one was later gifted at the Solomon R. Guggenheim Museum.
The popularity of Cattelan’s irreverent installation with collectors and viewers has also made it a target for litigation and unauthorized interaction. During Art Basel in Miami Beach, performance artist David Datuna removed Actor of the wall and ate the banana in a piece he dubbed hungry artist (2019), which served as the basis for a solo exhibition in New York the following year. Earlier this spring, an art student in Seoul visiting the Leeum Museum of Art’s Cattelan exhibit took the banana, ate it, and stuck the peel on the wall. The budding artist, Noh Huyn-soo, would have said: “Isn’t it taped there to be eaten?”
