September 2023 Millar’s JurisDiction - One Banana, Two Banana

by Richard W. Millar, Jr.

The theme of this column is, as you will see, music, art, and law. In that order.

First, music. The title is taken from what apparently is known as “The Tra La Song,” a 1968 ditty which was the theme song for a children’s television show. I can’t say that I remember the show or the song, but the lyrics have a whole lot of tra la las and few bananas. I don’t know who wrote it, but it wasn’t Cole Porter.

For my purposes, it is, however, apropos.

When it comes to art, I have various likes, but the one constant is that I have to understand whatever it is I am looking at. If it is a landscape, a portrait, or a house, it should look like a landscape, portrait, or house. If it is indecipherable, and if its title doesn’t match what I see, I am not going to spend much time “appreciating” it.

I also expect to see art in a museum, not in the fruit and vegetable aisles at Ralphs.

In other words, I think of a banana as a fruit, not as a work of art. At least two artists, however, disagree.

One Joe Morford is a “conceptual artist.” I have no idea what that means, but I will take his word for it. He created, and I use the word loosely, a wall sculpture consisting of an orange and a banana taped to green rectangular panels. The orange and the banana are made of plastic but look real. They look, in other words, like an orange and a banana.

Maurizio Cattelan is also a “visual and conceptual artist.” He created something which he called “Comedian” for the Art Basel Miami Art Fair. It was a banana duct-taped to a wall. That’s it; nothing more, although it was at a “very specific height” above the floor. Eschewing plastic, he used a real banana, which I suppose if you wanted to keep it around for some time, would require replacement. According to the artist, it was intended to reflect “absurdity,” as did its offered sale price of $120,000.

I am sure you can see where this is going.

Mr. Morford sued Mr. Cattelan for copyright infringement in the United States District Court for the Southern District of Florida. The case was assigned to District Judge Robert N. Scola, Jr. I am sure he was wondering how he was lucky enough to get a case between two conceptual artists arguing whether taping a banana to a wall could be copyright infringement.

After denying a motion to dismiss, the court dealt with cross motions for summary judgment.

Mr. Morford had obtained a copyright for his banana and orange in 2020 after his original submission was denied. His “work” had been on YouTube and a single Facebook post and a blog post. He claimed that Banana and Orange had been viewed by internet users in twenty-five different countries.

Mr. Cattelan claimed that he had never heard of Mr. Morford, nor ever seen his sculpture. Instead, he “drew his inspiration” from a prior work in New York Magazine where he depicted a banana hung from a billboard with red duct tape. He “asked his employees in Italy to test out bananas taped to the wall of his studio at different heights and angles.” Maybe his employees were used to that sort of thing, but I would have been looking at my employment contract if I were one of them.

In any event, the court’s order contained a lengthy discussion of the vagaries of copyright law, most of which I do not understand, getting hung up, as I am, on the question of why taping a banana to a wall is art. The court dodged that question by saying that the age-old question of what is art is “frankly unanswerable,” reducing the question to whether “one artist’s banana duct-taped to a wall is, in fact, an infringement on another’s . . . .” I guess “a plague on both your bananas” is not a workable jurisprudence.

The court’s key finding was that copyright protection extends to a “work’s expressive elements, not to any underlying idea [or] procedure.” Thus, according to the court, the idea of taping a banana to a wall is not protected. As far as I am concerned, it is not much of an idea either, but I digress.

The court granted Mr. Cattelan’s motion for summary judgment, denied Mr. Morford’s motion, and directed the clerk to “close this matter.”
After all was said and done, you could say that Mr. Cattelan emerged as top banana.

Richard W. Millar, Jr. is Of Counsel with the firm of FSG Lawyers PC in Irvine. He can be reached at rmillar@fsglawyers.com.