"substantial similarity"

July 10, 2022 12:47 AM

An Artist Sued Maurizio Cattelan for Allegedly Copying His Duct-Taped Banana. A Miami Judge Just Allowed the Case to Proceed - United States District Judge Robert N. Scola, Jr. asked: "Did Joe Morford sufficiently allege that Cattelan’s banana infringes his banana?” (Previously)
posted by bitteschoen (58 comments total)

A banana should never be subject to copyright. There is no original work there to claim ownership of, from either party. You both got paid for taping fruit to the wall - take that victory and go, don't get greedy for more scams.
posted by Dysk at 1:32 AM on July 10, 2022 [15 favorites]

Hosanna - banana manna!
posted by fairmettle at 1:59 AM on July 10, 2022

A banana should never be subject to copyright

Yeah, everybody knows that falls under patent law, duh :p
posted by wesleyac at 2:29 AM on July 10, 2022

Maurizio is the guy who made a functional gold toilet and named it America. It was stolen in 2019 two days after installation in Blenheim palace and still hasn't been found. I guess the police have nothing to go on.
posted by adept256 at 2:37 AM on July 10, 2022 [60 favorites]

I can see this precedent creating a slippery slope for all future banana-related art. Cattelan must appeal.
posted by chavenet at 3:52 AM on July 10, 2022 [28 favorites]

Morford's banana was plastic, so after a few days, the divergence between artworks would become readily apparent. Don't think this case will bear fruit for him.
posted by rikschell at 4:18 AM on July 10, 2022 [7 favorites]

I was going to say this is bananas, but then rtfa and gotta say I agree with the judge:

“While using silver duct tape to affix a banana to a wall may not espouse the highest degree of creativity, its absurd and farcical nature meets the ‘minimal degree of creativity’ needed to qualify as original.”

And I really, really hope this kicks off bananapalooza week on the blue.
posted by evilmomlady at 5:31 AM on July 10, 2022 [5 favorites]

I am amused at myself that, having seen the side-by-side pictures in the article, I have an opinion about which duct-taped banana is "better," that is, more aesthetically pleasing due to the juxtaposition of duct tape and banana, and the way the tape is applied.
posted by Well I never at 6:06 AM on July 10, 2022 [9 favorites]

Morford's banana was plastic

So you're saying he has no real skin in the game?
posted by flabdablet at 6:18 AM on July 10, 2022 [19 favorites]

Surely David Datuna has a substantial interest in this case, if only because he's getting hungry again.
posted by clawsoon at 6:22 AM on July 10, 2022

A banana should never be subject to copyright. There is no original work there to claim ownership of, from either party. You both got paid for taping fruit to the wall - take that victory and go, don't get greedy for more scams.

Plaintiff probably didn't get paid. He's suing the guy who got paid almost a half-million. Guy who pocketed a half-million would very much like to take the victory and go, I'm sure.
posted by mark k at 6:30 AM on July 10, 2022

Take the victory and split, surely.
posted by adept256 at 6:33 AM on July 10, 2022 [8 favorites]

Morford's banana
Cattelan's banana

Totally different.
posted by flabdablet at 6:59 AM on July 10, 2022

A banana should never be subject to copyright.

What about Andy Warhol 's one ?
posted by nicolin at 6:59 AM on July 10, 2022 [2 favorites]

Unnoticed so far: Both artworks are quietly playing 4'33. In this case the environmental audio generated by the peice is of duct tape slowly separating from banana. Paging John Cage to the match.
posted by joeyh at 7:01 AM on July 10, 2022 [8 favorites]

Plaintiff probably didn't get paid.

More like plantainiff, amirite?
posted by Orange Dinosaur Slide at 7:15 AM on July 10, 2022 [18 favorites]

Really hoping the jokes subside because this is a really interesting entry point to a discussion about intersection of art and copyright/idea ownership/reproduction.
posted by tiny frying pan at 7:19 AM on July 10, 2022 [10 favorites]

Maurizio is the guy who made a functional gold toilet and named it America. It was stolen in 2019 two days after installation in Blenheim palace and still hasn't been found. I guess the police have nothing to go on.

And I'm sure the police force is split between those that don't give a shit and those that really pissed off about it.
posted by NoMich at 7:26 AM on July 10, 2022 [6 favorites]

I guess the question is, "is 'banana plus duct tape' the medium, or the message?"

Is no one ever allowed to duct tape a banana to the wall again and call it art? What if it's electrical tape? What if it's a plantain? What if the banana is mounted left-handed instead of the right-handed banana?

Should there be a bar for "so stunningly obvious that prior art certainly exists, even if not documented"? Because holy shit, while it may not have been in an art gallery, surely someone once taped their buddy's banana to the wall in a shop class or worksite.
posted by explosion at 7:38 AM on July 10, 2022

Personally enjoying the article, the discussion, AND the jokes. Thank you for the interesting post, bitteschoen!
posted by Orange Dinosaur Slide at 7:42 AM on July 10, 2022 [8 favorites]

This bit seems meaningful:

However, Scola found that although “Morford cannot claim copyright in the idea of a banana taped to a wall […] Morford may be able to claim copyright in the expression of that idea.”

I can easily relate this to, say, novel-writing: nobody can copyright the idea of, say, one spouse cheating on another, or someone being murdered in a small English village, or a teenager experiencing new things and growing into adulthood. But individual expressions of those ideas certainly can be subject to copyright.

I'm not sure "banana taped to a wall" leaves a lot of wiggle room for individual interpretation, though changing the orientation of the banana; using a different kind of tape; creating a different backdrop; and even "real banana v. plastic banana" all seem like possibilities. If I were teaching students who were taping bananas to walls as a class project, I'd ask them to think about their own relationship to the banana, to the tape, what they want their banana-and-tape to suggest to viewers (even if it's just "its absurd and farcical nature," another very apt bit of language from the judge.
posted by Well I never at 7:49 AM on July 10, 2022

Somewhere, this guy is sweating nervously...
posted by xedrik at 7:56 AM on July 10, 2022 [2 favorites]

What about Andy Warhol 's one ?

His banana is not subject to copyright. His picture of it is.

Much like other people can do their own paintings of bananas, people should be able to take their own bananas to their own walls with their own tape without anyone claiming anything. Using the plaintiff's actual banana sculpture or a depiction thereof is different. In as far as the idea cannot be copyrighted but the execution cannot, contrary to the position that it leaves no wiggle room to do one's own interpretation, I'd say that the narrowness of the range of possibilities makes near any variation substantial. Like using a not identical banana, not using identical tape, not using the same colour and finish of wall, angles differing, etc, etc. These are not the same banana taped to the same wall, much my (bad) picture of a banana is not the same painting as Warhol's.
posted by Dysk at 8:14 AM on July 10, 2022 [2 favorites]

If this case doesn't end with the judge having a banana shaped phone that rings "Bananaphone" song and act like he's announcing his verdict that's being called to him, I am going to be sorely disappointed.

And the judge has to do a little wiggle dance in his chair , nodding back and forth to ring ring ring ring ring...
posted by symbioid at 8:27 AM on July 10, 2022 [4 favorites]

I actually think that the difference between Morford's banana being plastic and Cattelan's banana being an actual banana is significant. Whether intentional or not, taping an actual banana to a board where it will decay is actually an interesting critique on Morford's concept, saying that "clever" ideas also decay.

I'm here for Cattelan's banana and find it to be a valid expression of criticism of the original artwork. Judge tclark would say case dismissed.
posted by tclark at 8:32 AM on July 10, 2022 [9 favorites]

Occam's banana strikes again.
posted by NoThisIsPatrick at 8:52 AM on July 10, 2022 [4 favorites]

I was going to spend the summer working on an elaborate Bananadalorian Halloween costume (complete with bananadoliers and orange thermal detonator), but now I think I will just tape a banana to my shirt and go as Sexy Comedian.
posted by ActingTheGoat at 8:55 AM on July 10, 2022 [2 favorites]

Neither claim of ownership is legally valid because I own the NFT of banana.jpg for which I paid $1.3 million dollars in dogecoin.
posted by dephlogisticated at 9:40 AM on July 10, 2022 [5 favorites]

Came to make an NFT joke but was dephlogisticated.
posted by sammyo at 9:43 AM on July 10, 2022 [8 favorites]

Yeah that'll happen.
posted by dephlogisticated at 9:48 AM on July 10, 2022 [8 favorites]

If you haven’t seen the immensely entertaining documentary about Cattalan (Maurizio Cattelan: Be Right Back), you should. It plays with Cattelan-the-artist identity shenanigans in a delightful way, with Cattelan being played by the curator of the Guggenheim (although this isn’t stated anywhere). As someone who clearly relishes in creating confusion and criticising the very medium they inhabit, it wouldn’t surprise me if Cattelan was in cahoots with Morford.
posted by fregoli at 10:02 AM on July 10, 2022 [5 favorites]

it's going to have to be thrown out because no one read him his carmen miranda rights
posted by pyramid termite at 10:03 AM on July 10, 2022 [13 favorites]

overthinking a wall of bananas
posted by roger ackroyd at 10:15 AM on July 10, 2022 [3 favorites]

it's going to have to be thrown out because no one read him his carmen miranda rights

Supreme Court don't care no more, I think because of the Barbara Streisand defect.
posted by clawsoon at 10:23 AM on July 10, 2022

I am enjoying the article, the issues, and the jokes. Thanks for this OP!
posted by rpfields at 10:58 AM on July 10, 2022

I’m sure any judgment will be immediately appealed.
posted by aspersioncast at 11:10 AM on July 10, 2022 [3 favorites]

"Art is either plagiarism or revolution" - Gauguin
posted by gwint at 12:49 PM on July 10, 2022

"Art is either plagiarism or revolution" - Duchamp
posted by gwint at 12:49 PM on July 10, 2022 [3 favorites]

One thing everyone can probably agree on is that they said they'd make banana muffins when they turned brown and then didn't.
posted by klanawa at 1:47 PM on July 10, 2022 [2 favorites]

"Art is either plagiarism or revolution" - me
posted by a car full of lions at 4:01 PM on July 10, 2022 [3 favorites]

(I keep trying to work Mitch Hedberg’s “…because I might want a regular banana later” joke into this but am feeling stumped.)
posted by Insert Clever Name Here at 4:01 PM on July 10, 2022 [2 favorites]

I suggest that when they offer the jury lunch they have a choice between a real banana and a plastic one.
posted by adept256 at 4:40 PM on July 10, 2022

I have spent more time than I care to admit wondering if Catellan’s banana was made into a delicious banana bread
posted by Doleful Creature at 4:50 PM on July 10, 2022

I have spent more time than I care to admit wondering if Catellan’s banana was made into a delicious banana bread

I regret to inform you that some wag pulled it off the wall and ate it.
posted by His thoughts were red thoughts at 5:26 PM on July 10, 2022

Now it's performance art.
posted by tclark at 7:46 PM on July 10, 2022

These are not the same banana taped to the same wall

I feel like this can't be sufficient, or a talented forger need never fear because they did not use the same canvas or tube of paint.
posted by solotoro at 7:54 PM on July 10, 2022

Neither claim of ownership is legally valid because I own the NFT of banana.jpg for which I paid $1.3 million dollars in dogecoin.

But I right-clicked / Save as... your banana.jpg so technically it's now mine. Come at me bro!

/s
posted by WhyamIhereagain at 8:21 PM on July 10, 2022 [1 favorite]

I feel like this can't be sufficient, or a talented forger need never fear because they did not use the same canvas or tube of paint.

Context, though. If you look at my comment in its entirety, you'll see that the fact of the space for variation being so small in the field of banana-taped-to-a-wall art that makes such small variations significant. Since more variation is possible within the field of paintings of bananas, the level of difference needed to be considered substantial is greater - it is not simply enough to use a different canvas and new paint.

But, much like Warhol may own guys picture of a banana but not the concept of idea of a picture of a banana, so nobody can own the idea is a banana taped to a wall. For them not to do so in practice, the variations that are possible have to be considered significant. Otherwise you de facto are giving someone ownership of the idea, not just their execution.
posted by Dysk at 10:49 PM on July 10, 2022 [1 favorite]

The classic criticism of this style of art is "how is this art? My five year old could do it?" The classic response is, "Well, they didn't do it, did they? I did it." On some level it seems to me claiming you're not infringing is like admitting there's nothing there.

But, much like Warhol may own guys picture of a banana but not the concept of idea of a picture of a banana, so nobody can own the idea is a banana taped to a wall. For them not to do so in practice, the variations that are possible have to be considered significant. Otherwise you de facto are giving someone ownership of the idea, not just their execution.

There are lots of possible meaningful variations. You could duct tape 37 bananas to a wall, you could duct tape it so it's perpendicular to the wall to highlight the phallic nature of the fruit, you could duct tape it in a bowl of fruit, you could completely cover the banana in duct tape, you could duct tape it below a stick figure about to step on the peel, and so on. It only appears there's a small range of variations if you limit yourself to essentially making a copy; just make it not a copy and the world's your oyster.
posted by mark k at 11:41 PM on July 10, 2022

Interesting to note that Cattelan was already taping things (or rather, people) to the wall back in 1999. I wonder if that’s going to be an argument in his favor, since Morford’s "Banana & Orange" was in 2000.
posted by bitteschoen at 11:42 PM on July 10, 2022

Paging John Cage to the match.

"Paging John Cage's estate's lawyers to the match" - TIFIFY
posted by mbo at 12:20 AM on July 11, 2022

If he had duct-taped a green banana, this very serious and important legal situation wouldn't be ripe for a bunch of jokes.
posted by They sucked his brains out! at 12:57 AM on July 11, 2022 [5 favorites]

Both artworks are quietly playing 4'33

Fail. As any fule no, "4' 33"" must be played LOUD for full effect.
posted by chavenet at 1:16 AM on July 11, 2022 [1 favorite]

There are lots of possible meaningful variations.

Most of what you describe as possible variations are so different as to no longer be a banana taped to a wall. A bowl of fruit taped to a wall is certainly a thing you could do, but much as a picture of a banana is not the same conceptually as a picture of a bowl of fruit, so there is little you can do within the space of 'banana taped to a wall' without stepping beyond that concept. In disallowing another banana taped to a wall without the introduction of additional elements, you are giving away ownership of the concept of a banana taped to a wall, not just the execution. Again, I can paint a portrait of a smiling woman or a picture of a banana without plagiarizing Da Vinci or Warhol, even if I don't introduce additional elements, even if I don't change the underlying concept at all. I want the same for banana taped to walls.


And the execution is different - different framing, different background, different angle (yes, they are not the same), tape attached differently, etc. And that's before you get to the fact that one banana is a banana, and the other is plastic.
posted by Dysk at 1:53 AM on July 11, 2022

Incidentally, Cattelan just won another interesting lawsuit about his art:

Maurizio Cattelan Wins His Legal Case Against His Disgruntled Fabricator. But for Some, Key Questions Remain Unanswered

A court in Paris has dismissed a claim by French sculptor Daniel Druet demanding to be recognized as the creator of nine wax figures he was commissioned to make for the Italian conceptual artist Maurizio Cattelan.

But there is disagreement about whether the ruling still leaves the key question of the case in doubt: whether a fabricator can rightfully claim authorship of an artwork made on commission for an artist.

posted by bitteschoen at 6:19 AM on July 11, 2022 [1 favorite]

Interesting to note that Cattelan was already taping things (or rather, people) to the wall back in 1999.

Pish. We were running “duct tape your friend to the wall” contests at my high school back in the 1980s.
posted by fimbulvetr at 6:36 AM on July 11, 2022 [3 favorites]

It's hard to see how bananas taped to walls are in any way covered by Congress's mandate "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
posted by grokus at 10:03 AM on July 11, 2022 [1 favorite]

He not like the banana
posted by bread crumbs at 2:27 PM on July 11, 2022