Going (copyright) bananas: Maurizio Cattelan prevails in copyright infringement lawsuit over Comedian

· copyright,Maurizio Cattelan,Comedian

“Perhaps I’ll be remembered in history as the banana imbecile”, summed up provocative and uber-creative artist Maurizio Cattelan in a recent interview with Italian newspaper Corriere della Sera.

I personally love everything by Cattelan and among other things I did enjoy the recent exhibition in Florence about his and other contemporary artists’ work. As the students I have had the pleasure of teaching to at several institutions in Europe know, I like using Cattelan's banana – or rather: Comedian, as the opus is titled – to illustrate the idea/expression dichotomy and explain how misleading the term ‘dichotomy’ indeed is. It unduly suggests a clear divide between idea and expression, while the truth is way more complex than that. It is indeed more realistic and correct to speak of an idea/expression spectrum: there are ‘objects’ that clearly fall on the ‘idea’ side of the spectrum and others on the ‘expression’ side, but there is plenty of other objects – Comedian being one – for which the dividing line between ‘idea’ and ‘expression’ looks quite blurry.

In all this, Cattelan is likely right in saying that Comedian is one of the best-known works of his. The recent ‘incident’ in Seoul, that is when an art student ate the banana that is part of Comedian, has also attracted quite a lot of attention and, likely, more than a smile.

Of course, that is not all: Comedian has in fact also sparked litigation in the USA. Would you say that Cattelan’s work (realized for an exhibition in Miami in 2019) is an unauthorized reproduction of the 2001 work below, titled Banana and Orange, and thus an infringement of the copyright vesting in it?

broken image

The response of the US District Court for the Southern District of Florida was that, no, Cattelan’s “now-infamous, absurdist display of a banana duct-taped to a wall at Art Basel Miami in 2019” had not infringed Morford’s copyright. In so doing, the judge expressed relief that “the Court still need not attempt to answer that age-old (and frankly unanswerable) question” of “what art is” 😅.

Let’s see more in detail how the judge reasoned.

The decision

Having reviewed visual similarities and dissimilarities between the works in question (an intriguing difference is that, while Comedian employs an actual banana, Banana and Orange uses plastic fruits), the Court focused on how Cattelan came up with the idea for Comedian – so also to determine if Cattelan had had access to Morford’s work. Interestingly enough, there was no need to discuss if Morford’s work would be protectable at the outset also because the plaintiff had managed to re