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A judge in Florida has tossed artist Joe Morford’s copyright infringement lawsuit against Maurizio Cattelan, in which Morford claimed to have come up with the idea for an artwork featuring a duct-taped banana nearly 20 years before Cattelan’s viral sensation Comedian (2019) debuted at Art Basel in Miami Beach. In a decision on 9 June judge Robert N. Scola, Jr., a US district judge for the southern district of Florida, granted Cattelan’s motion for summary judgement, closing the case.

Morford’s lawsuit hinged on similarities between Cattelan’s Comedian and his own work from 2001, Banana and Orange, which features plastic replicas of the titular fruits duct taped to two green panels. However, judge Scola ruled that the similarities between the works were insufficient, and Morford’s claim that Cattelan might have seen his work and been influenced by it unconvincing, to pursue allegations of copyright infringement.

Comedian simply contains two (sic) many differences from Banana and Orange: the banana used, the angle at which it is placed, the method by which it is taped to the background, the background itself and the exacting standards that Cattelan developed for Comedian’s display,” judge Scola’s ruling concludes. “To find otherwise would further limit the already finite number of ways in which a banana may be legally taped to a wall without infringing on Morford’s work.”

In addition to pointing to similarities between the works, Morford had claimed that Cattelan could have come across Banana and Orange in one of several online venues—on Facebook, YouTube and a blog post. Cattelan, for his part, claimed that he had never heard of Morford prior to being sued by him, and had developed an early version of the work independently in 2018 as a cover commission for New York Magazine. In a declaration one of Cattelan’s studio employees, Jacopo Zotti, confirmed as much.

“Cattelan is the only party who has put forward any evidence addressing the defense of independent creation,” Scola wrote in his ruling. “The court may, and does, credit his declaration and the declaration of his employee.”

Joe Morford’s Banana and Orange (left) and Maurizio Cattelan’s Comedian

The judge’s ruling goes into great detail regarding two formal similarities that Morford’s claim hinged upon: the angle at which the banana in each work is affixed to the vertical surface, and the angle at which the adhesive tape crosses the banana. In each instance and in remarkably exacting detail, the judge outlines why such accusations are unconvincing.

“There are only so many angles at which a banana can be placed on a wall (360, to be precise, unless one breaks the measurements down beyond degrees—but making such a minute distinction would be reaching a point of absurdity best left out of the courts and in the hands of artists),” judge Scola wrote. “Finding that Morford’s and Cattelan’s selections of different angles were “close enough” to reach substantial similarity would necessarily place a significant legal limit on the number of ways that a banana can be taped to a wall without copying another artist’s work.”

Regarding the placement of the tape, the judge wrote: “It is, to put it bluntly, the obvious choice. Placing the tape parallel with the banana would cover it. Placing more than one piece of tape over the banana, at any angle, would necessarily obscure it. An artist seeking to tape a banana (or really, any oblong fruit or other household object) to a wall is therefore left with “only a few ways of visually presenting the idea”—all of which involve a piece of tape crossing the banana at some non-parallel angle.”

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Cattelan’s Comedian was an instant sensation at Art Basel in Miami Beach in 2019, where it debuted on Perrotin’s stand. Ultimately all three editions of the work, priced at $120,000 each, sold; one was subsequently gifted to the Solomon R. Guggenheim Museum.

The popularity of Cattelan’s irreverent installation with collectors and viewers also made it a target—for litigation and unsanctioned interaction. During Art Basel in Miami Beach, performance artist David Datuna removed Comedian from the wall and ate the banana in a piece he dubbed Hungry Artist (2019), which formed the basis of a solo exhibition in New York the following year. Earlier this spring, an art student in Seoul visiting the Leeum Museum of Art’s Cattelan exhibition took the banana, ate it and taped the peel back on the wall. The aspiring artist, Noh Huyn-soo, reportedly said: “Isn’t it taped there to be eaten?”

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