In Brief:   Following up on this blog’s post of 3/7/23, the court ruled that a banana does not infringe a banana and an orange.

Here’s What Happened:

By way of background, Joe Morford, created a work that consisted of a banana and an orange duct taped to a green background with masking tape added around the edges of the background. He published his work on his social media and his website.

Maurizio Cattelan, created a work that consisted of an overripe banana duct taped to a neutral colored background with no additional masking tape. Maurizio’s work proved quite popular. He was able to sell three copies and two proofs for over $390,000.00.

Joe, acting pro se, sued Maurizio for copyright infringement. After surviving a motion to dismiss and completion of discovery, the parties brought cross-motions for summary judgment.

Copyright infringement has two elements: (1) ownership of a valid copyright; and (2) copying of constituent elements of the work that were original. A key issue of the second element is whether the defendant had access to the work so that the original work was “used” to create the infringing work.

Maurizio denied that he had access to Joe’s work. The court discussed the threshold for access to an original work. It is not enough that the work has been disseminated in places or settings where a defendant might have access. There has to be some “nexus” between the plaintiff and defendant to establish an inference of access. Maurizio came up with the inspiration from his own work depicting a banana hanging from a billboard. He denied having access to Joe’s work. Joe did not present any evidence to rebut Maurizio’s inspiration and creation of the work. So this element weighed against infringement.

Using the three step test the court developed previously, the court went on to determine if Maurizio infringed on any protectable features of Joe’s work.

The first step was “abstraction”, which requires a breakdown of the constituent structure parts of the work. Both works used a banana and duct tape. Joe’s banana is duct taped to a panel surrounding by masking tape. Maurizio’s banana is riper and is duct taped directly on the wall. Joe’s work also includes an orange duct taped to a panel surrounded by masking tape. Maurizio’s work does not.

The second step was “filtration”, where the court filters out the unprotectable elements of the work. The court filtered Joe’s work to find the following protectable elements: (1) the green rectangular panel on which the fruit is placed; (2) the use of masking tape to border the panels; (3) the orange on the top panel and banana on the bottom panel, both of which are centered; (4) the banana's placement at a slight angle, with the banana stalk on the left side pointing up.

The third step was “comparison”, where the protectable elements of the works are compared to determine substantial similarity. When boiling down the protectable elements, Maurizio’s work had sufficient differences to avoid a finding of substantial similarity. Maurizo’s work was duct taped to a wall and not a green panel. Maurizo’s work did not use a masking tape border. The placement of the banana was different.

Therefore, the court granted Maurizo’s motion for summary judgment finding no copyright infringement.

Why You Should Know This: The court acknowledged that the issue isn’t whether fruit duct taped to a surface is art. Rather, were elements of the original work copied enough to make the two works substantially similar? The court’s filtration analysis shows that breaking down protectable elements could be a judgment call in the end.

Case Information: Morford v. Cattelan, Case No. 21-20039-Civ-Scola, 2023 WL 3971968 (S.D. Fla. June 12, 2023).

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