A federal judge has ruled against a Miami artist who claimed that Maurizio Cattelan stole his idea to make duct-taped banana art.

When Perrotin sold Cattelan’s sculpture Comedian for $120,000 at Art Basel Miami Beach in 2019, it immediately became a viral sensation. But the artist Joe Morford said he made a version of the work back in 2001 and sued the Italian artist for copyright infringement.

In Morford’s work, the artist duct-taped a plastic orange and a plastic banana to panels hung on a wall. In 2020, he successfully registered a copyright for his work, and Cattelan’s motion to dismiss the case was rejected by U.S. District Judge Robert N. Scola, Jr., who acknowledged “substantial similarity.”

But Morford’s luck ran out there. In his decision, Judge Scola outlined various features that distinguished the two works. Most notably, Banana and Orange has a green background and a border of masking tape and the banana was placed at only a slight angle from horizontal. By contrast, Cattelan’s Comedian has no specified background, no border and a much stronger angle. The fact that both works featured bananas with the stalk to the left-hand side was therefore “insignificant and insufficient to support a finding of legal copying,” he wrote.

A side-by-side comparison of Morford’s and Cattelan’s works. Photo via court documents.

By the judge’s estimation, Morford was also unable to prove that Cattelan used this 2001 work as the source for his own creation. It had been made available to purchase online, but had otherwise only appeared briefly in a Youtube video uploaded in 2008 and in single posts on Facebook and Blogspot in 2015 and 2016, respectively. The Italian artist also denied that he had previously heard of Morford.

“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,” summarized Scola. “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.”

Cattelan said he made Comedian especially for Art Basel Miami Beach, and was inspired by another work in which a banana hangs from a billboard with red-duct tape that was featured in New York Magazine in 2018.

Since its creation, Comedian‘s worldwide notoriety has been buoyed by not one but two instances of it being ripped off the wall and eaten. Firstly at the fair, during an unauthorized “performance art piece” by another artist David Datuna, and earlier this year, when a South Korean art student claimed he got hungry at the Leeum Museum of Art in Seoul.

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