Artist Maurizio Cattelan vigorously denied copying another artist’s work in the making of his viral sculpture, Comedian, which comprises a banana duct-taped to a wall. In fact, his lawyers claim in a new legal filing, he was entirely unaware the other work existed. 

Cattelan’s response marks the latest development in a sometimes-surreal legal battle in Miami over the sculpture’s originality. Miami-based artist Joe Morford accused the Italian artist of infringing the copyright of his own work, Banana & Orange, a vertical diptych of an orange and banana attached onto green panels with gray duct-tape. Morford says he registered the work with the U.S. Copyright Office in 2000. 

In June, U.S. District Judge Robert N. Scola, Jr., rejected Cattelan’s motion to dismiss the case, concluding that at this stage Morford had “adequately alleged that Cattelan’s Comedian has a substantial similarity to […] elements of Banana & Orange.”

Now, Cattelan’s team is pushing back. Responding to Morford’s claims, the artist’s lawyers submitted a document outlining no fewer than 19 “affirmative defense” arguments. (The brief was submitted by Florida litigation attorney Julie E. Nevins at Stroock & Stroock & Lavan LLC on behalf of Cattelan’s New York lawyers, Adam Cohen and Dana Susman, from Kane Kessler.) 

Cattelan denies knowing about Banana & Orange before making Comedian, which was presented by Perrotin to much fanfare and derision at Art Basel Miami Beach in 2019. The document states that Cattelan “independently created his work, Comedian, without knowledge of or reference to Plaintiff’s work, Banana & Orange.” According to court papers, three copies of Comedian sold, as well as two proofs, for a total of more than $390,000.

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

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

The Italian artist also refutes Morford’s allegation that Cattelan could have discovered his work online. Cattelan says that Morford’s claims for copyright infringement should fail because Morford “cannot establish that Defendant [Cattelan] had the requisite access to Plaintiff’s work, Banana & Orange, before Defendant created his work, Comedian.” 

Cattelan also appears to question Mumford’s copyright registration, alleging that he “did not register copyright for his work, Banana & Orange, prior to the creation and/or exhibition of Defendant’s work, Comedian.”

Furthermore, Cattelan contends that Morford’s copyright is invalid due to the subject matter: “a useful article, namely duct tape, and items appearing in nature, namely oranges and bananas” fail to meet the “requisite degree of originality” required by the U.S. Copyright Act. 

Several of these points were raised by Cattelan in his June motion to dismiss. In his preliminary ruling, Judge Scola disagreed with Cattelan’s “requisite degree of originality” argument. The judge stated: “While using silver duct tape to affix a banana to a wall may not espouse the highest degree of creativity, its absurd and farcical nature meets the ‘minimal degree of creativity’ needed to qualify as original.”

Cattelan also claimed that if any infringement of valid copyright occurred, it was accidental. “To the extent that Defendant would be liable to Plaintiff for infringement of any valid copyright, such infringement was and is innocent and not willful,” the legal brief reads. “Defendant, at all times, acted in good faith.”

Morford is representing himself in the lawsuit. Neither Cattelan’s legal team nor Morford immediately responded to a request for comment. 

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