Court Finally Dismisses Bananas Copyright Lawsuit Over Bananas Taped To Walls
A year ago, we wrote about an unfortunate decision by a judge rejecting a motion to dismiss in a copyright lawsuit regarding bananas taped to walls. There was, of course, the high profile banana taped to wall" artwork by Maurizio Cattelan that got tons of public attention at Art Basel in 2019 when it sold for $120,000 (and when someone walked over and pulled it off the wall and ate it, in a bit of counterprograming). Cattelan was the defendant in this lawsuit as some other guy, Joe Morford, claimed that he had done it first with an artwork called Banana & Orange" and that Cattelan's banana (which, officially, was called Comedian") infringed on his work.
As we noted all of this was ridiculous. Copyright applies to the specific expression, not the idea, and nothing in this came even close to being infringing. It surprised us that the judge rejected the motion to dismiss, though as we noted in the original article, that didn't mean the case wouldn't ultimately get dismissed. It's just that first they'd have to go through discovery.
And, now that's happened, and both sides filed for summary judgment, leading the judge to finally get it right and dismiss the case. In rejecting the motion to dismiss, the judge said that Morford's claims that Cattelan had access" to the original work via the internet were enough, but after discovery, the judge says Morford needs to show more and did not:
Morford argues that Cattelan had a reasonable opportunity to view Banana and Orange because it has been posted on the internet for several years. He asserts that his work has been available on YouTube since July 18, 2008, on Facebook since July 29, 2015, and on Blogpost since July 2, 2016."... Based on the fact that Banana and Orange has been verifiably viewed worldwide over a span of approximately 10 years prior to the appearance of [the] [D]efendant's piece," Morford argues by implication that access can, at this point, be presumed....
But mere availability, and therefore possibility of access, is not sufficient to prove access. Herzog, 193 F.3d at 1249. [M]ere speculation and conjecture" are insufficient to sustain a finding of access. Id. A plaintiff cannot prove access only by demonstrating that a work has been disseminated in places or settings where the defendant may have come across it. Id. at 1249-52 (holding that some nexus" between the plaintiff and the defendant is required to establish an inference of access where the plaintiff's work was disseminated in a setting where the defendant may have come across the work). And, despite the Plaintiff's arguments to the contrary, whether a work has caught on in popularity is a viable consideration in determining access. Watt v. Butler, 457 F. App'x 856, 859-60 (11th Cir. 2012) (holding that the plaintiff could not prove a finding of access where there was no evidence that Come Up' [the plaintiff's allegedly infringed song] ever caught on in popularity" or that the song or the performing group ever became a commercial success."). A work's mere presence on the internet alone, then, is insufficient to demonstrate access without some additional proof that the defendant had some relevant nexus to the plaintiff's work or that the plaintiff's work enjoyed some meaningful level of popularity....
The Plaintiff puts forward no evidence here supporting a reasonable opportunity for Cattelan to have viewed Banana and Orange. His evidence amounts to no more than proof that his work was available on one Facebook post, one YouTube video, and one blog post.... Nowhere is Morford able to demonstrate that Banana and Orange enjoyed any particular or meaningful level of popularity; in fact, the evidence cited supports the opposite finding, that it remained a relatively obscure work with very limited publication or popularity. ... Nor is Morford able to demonstrate any particular nexus between Cattelan and himself. Instead, the only record evidence relating to any connections between the two is Cattelan's clear statement that he had never heard of Morford until this lawsuit.
But, more importantly, the point that we raised originally: nothing in the similarities between the two pieces of art" are protectable under copyright. The similarity is the concept, not the actual expression. And the court gets that, and goes deep on the merger doctrine which says, loosely, that if certain ideas (unprotectable) can only be expressed in a very limited number of ways, you can't then claim it's infringing if others express the same idea in a somewhat similar way. In short, the court makes it official: there's really only one good way to tape a banana to a wall artistically:
The method chosen by both Morford and Cattelan-the X" shape of the duct tape crossing the banana in a perpendicular manner-essentially merges with the concept of taping a banana to a wall. Id. 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.
And thus, the taping a banana to a wall in this manner is not protectable under copyright.
Where does this leave the Court's filtration analysis? Effectively, it removes from consideration the largest and most obvious abstracted element of Banana and Orange: the banana [that] appears to be fixed to the panel with a piece of silver duct tape running vertically at a slight angle, left to right." (Order Denying Mot. Dismiss at 10.) This expression is not protectible under the merger doctrine.
The judge does push back on the argument from Cattelan that nothing in Morford's work is protectable, noting that there are some other artistic choices that are:
There are still protectible elements of Morford's work: (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."
But, uh, you'll notice those are not the elements in Catallan's piece. The court even makes a chart:
And I imagine this is the only time we'll ever see a court utter the following bolded phrase:
Reviewing these elements as a whole, it is clear that Banana and Orange and Comedian share only one common feature that the Court has not already set aside as unprotectible: both bananas are situated with the banana's stalk on the left-hand side of sculpture. This solitary common feature is, on its own, insignificant and insufficient to support a finding of legal copying.
Afterwards, the judge admits that the merger doctrine would get in the way anyway:
And the placement of the banana's stalk (on the right-hand side of the sculpture versus the left, or vice-versa) would be another element subject to the merger doctrine anyway: there are only two ways the stalk may be placed, to the right or to the left
The judge goes even further:
Morford makes much of the fact that the bananas' angles are relatively similar, but this point actually works against him. 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). 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. ... In other words, the Court would need do that which it has already said it cannot do-find that Morford could copyright the idea of duct-taping a banana to a wall.
And, with that, we conclude a case that had already gone on too long. Taping a banana to a wall, without any of that other stuff, is not protectable under copyright.