Ripe for Review: Digital Access to a Banana taped to the Wall
Patent – Patently-O 2025-01-06
Summary:
by Dennis Crouch
Let me peel back the layers of this slippery copyright dispute that has the art world going bananas. In Morford v. Cattelan, No. 23-12263 (11th Cir. 2024), the Eleventh Circuit confronted the question of whether an artist can claim copyright protection over the concept of taping a banana to a wall. The appellate court sided with the accused famous artist, Morford continues to pursue his copyright action in a newly filed petition for writ of certiorari to the Supreme Court.
The core dispute stems from Maurizio Cattelan’s notorious work “Comedian” (2019), which sold for an eye-peeling $120,000 at Art Basel Miami — and later garnered a $6 million price for one of a limited edition of three. Morford claimed this work infringed his earlier piece “Banana and Orange” (2000), arguing that Cattelan’s work copied his original expression. However, both the district court and the Eleventh Circuit, rejected the arguments — siding with Cattelan.
Copyright infringement requires proof of copying. And one way to achieve that proof is to show that the accused infringer had access to the original work. Here, the court found Morford’s evidence was too thin to support his claim that Cattelan had access to his work.