“Yeah, it’s just a stupid banana taped to a wall,” California artist Joe Morford said in his unsuccessful appeal.
Duct-taped banana sold for $6.2 million at Sotheby’s
‘Comedian,’ a sculpture by the artist Maurizio Cattelan, consisting of a piece of duct tape and a banana stuck to a wall, has sold for $6.2 million at Sotheby’s in New York after more than six minutes of fierce bidding.
Bloomberg
WASHINGTON − You can’t tuna fish, but can you appeal a banana?
California artist Joe Morford tried, hoping the Supreme Court would give him credit for being the first person to tape a banana to the wall in the name of art. But the justices on Monday rejected his fruit suit.
That leaves in place lower court rulings that Italian artist Maurizio Cattelan, who sold his banana art work, “Comedian,” for about $6.2 million last year, did not rip the idea off of Morford.
The first judge to review the art ruled in August that Morford hadn’t shown Cattelan was aware of his earlier work and that the two pieces were not strikingly similar.
Morford taped both a banana and an orange to the wall and used plastic fruit centered on solid green rectangular panels.
Cattelan used a real banana taped directly to a blank wall. (The precise specifications for how high the banana must be placed above the floor and the size of the piece of duct tape – which must be torn, not cut − were filed under seal.)
While Morford emphasized that the angles of the bananas are relatively similar, U.S. District Judge Robert Schola, Jr., in Florida said that point actually works against him.
“There are only so many angles at which a banana can be placed on a wall,” Schola wrote, declining to “place a significant legal limit on the number of ways that a banana can be taped to a wall.”
His decision dismissing the suit, which was upheld by the Atlanta-based 11th U.S. Circuit Court of Appeals, came before a version of “Comedian” sold at auction at Sotheby’s in New York in November to a Chinese cryptocurrency entrepreneur.
‘Just a stupid banana taped to a wall’
The dispute started after Cattelan designed “Comedian” for the Art Basel Miami art fair in December of 2019. The piece, meant to reflect “absurdity,” went viral and sold for more than $100,000.
Morford sued, claiming “Comedian” copied “Bananas and Oranges,” which he’d created in 2000. Morford said his piece has been available on the internet, including through his Facebook page and in a blog post.
But Schola said the fact that Cattelan had the opportunity to view “Bananas and Oranges,” was not proof that he had accessed the “relatively obscure work with very limited publication or popularity.”
Cattelan testified that his inspiration came from a previous work for New York Magazine in 2018, where he had depicted a banana hanging from a billboard with red duct tape. One of his employees corroborated that Cattelan had his assistants test out bananas taped to a wall at different heights and angles to choose the best combination.
Morford, who represented himself in his unsuccessful appeal, told the Supreme Court it’s hard to be an artist.
“Yeah, it’s just a stupid banana taped to a wall,” he wrote. “But if copyright is only for works that are popular or successful, then there is no such thing as copyright protection. It is a sham.”