Artist Maurizio Cattelan has doubled down on his denial that his viral sculpture comprised of a banana duct-taped to a wall copied another artist’s work. In a new filing, his lawyers claim that Cattelan was unaware the other artwork even existed.
The legal battle over the originality in Cattelan’s buzzy piece, Comedian, began after the Miami-based artist Joe Morford accused Cattelan of infringing the copyright of Morford’s own duct tape sculpture, Banana & Orange. Morford’s work consists of an orange attached to a wall with tape and a banana affixed elsewhere on the wall. Morford says he registered his work in 2020 with the U.S. Copyright Office, and shared images of it on his website and social media platforms.
In July, a federal judge in U.S. District Court for the Southern District of Florida in Miami ruled that Morford could take legal action against Cattelan for Comedian, which caused a sensation at the Art Basel Miami Beach fair in 2019. The work “offers insight [into] how we assign worth and what kind of objects we value,” according to a statement from Perrotin gallery, which presented Comedian at the fair.
Cattelan’s motion to dismiss the suit brought by Morford was denied, with Robert N. Scola, Jr., the presiding judge, writing in his decision that Morford had “adequately alleged that Catalan’s Comedian has a substantial similarity to […] elements of Banana & Orange.”
In response to Morford’s legal challenge, Cattelan’s lawyers have cited in their filing 19 “affirmative defense” arguments. The document was submitted by Stroock & Stroock & Lavan LLC in Florida on behalf of Cattelan’s New York legal representation. The court documents states that Cattelan “independently created his work, Comedian, without knowledge of or reference to Plaintiff’s work, Banana & Orange.” According to the documents, Cattelan sold three copies, as well as two proofs, for more than $390,000.
Cattelan said that Morford’s allegation of copyright infringement fails because “he cannot establish that Defendant [Cattelan] had the requisite access to Plaintiff’s work, Banana & Orange, before Defendant created his work, Comedian.” Cattelan also challenges Morford’s copyright registration, saying that the latter “did not register copyright for his work, Banana & Orange, prior to the creation and/or exhibition of Defendant’s work, Comedian.”
Cattelan’s filing adds that the Morford’s inclusion of “a useful article, namely duct tape, and items appearing in nature, namely oranges and bananas” does not satisfy the “degree of originality” required for the U.S. Copyright Act.
Cattelan also challenged Morford’s “degree of originality” in his June motion to dismiss the lawsuit. The Italian artist argued that the presence of “additional elements in Banana & Orange—namely, an orange, the green background, and the use of masking tape borders—weigh against a finding of substantial similarity.”
Judge Scola, however, disagreed with his argument, stating, “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.”