Banana + Orange + Duct Tape = Art?
Copyright Infringement; Copyrightability
In Brief: Can a banana with duct tape infringe on the copyright of a banana and an orange with duct tape?
Here’s What Happened:
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. Maurizio brought a motion to dismiss arguing that Joe cannot claim a copyright in the idea of taping fruit to a background because the idea is not sufficiently original to warrant copyright protection.
The district court denied the motion to dismiss. The court began the decision with a short philosophical discussion about art.
"Can a banana taped to a wall be art? Must art be beautiful? Creative? Emotive? A banana taped to
a wall may not embody human creativity, but it may evoke some feelings, good or bad. In any
event, a banana taped to a wall recalls Marshall McLuhan's definition of art— “anything you can
get away with.” To that end, bananas have come to represent a type of irreverence in pop culture—from vaudeville to Andy Warhol, artists have wielded bananas to expand the boundaries of art.
The court brushed aside Maurizio’s argument about the copyrightability of Joe’s work holding that it was a matter for summary judgment."
The court went into a lengthy discussion of evaluating the elements of copyright infringement. The court held that Joe had sufficiently alleged the two primary elements of copyright infringement: (1) access; and (2) substantial similarity between the works. One of the most interesting parts of the court’s analysis was the discussion of evaluating substantial similarity. The court acknowledged that other courts have used different types of analysis (“extrinsic v. intrinsic test” or “lay observer test”) but felt that the appropriate test is more a matter of semantics. The court used a three-step test. The first step was “abstraction”, which requires a breakdown of the constituent structure parts of the work. The second step was “filtration”, where the court filters out the unprotectable elements of the work. The third step was “comparison”, where the protectable elements of the works are compared to determine substantial similarity.
Why You Should Know This: The court created a new hybrid model for determining copyright infringement. However, it’s hard to get passed the court’s treatment of the copyrightability issue. Whether the work is copyrightable should be a threshold issue in an infringement case. If the work isn’t copyrightable, there is no infringement.
The case is still pending. The parties are now engaged in discovery.
Case Information: Morford v. Cattelan - 21-20039-Civ-Scola (D.C.S.D. Fla. 2022).