Art appreciation

Orange are you happy? A dizzying dispute over what constitutes art

Welcome back from the break. How did you spend your summer vacation? Diligently reviewing and analyzing copyright and other legal decisions as they emerge from various district and appellate courts? Nope? Why the hell would anyone do such a thing? Well, I have a doozy for you.

In July, when most were out to soak up UV rays or sip appetizers, the United District Court for the Southern District of Florida was hard at work. In one of his most notable cases, at least for my purposes, he was faced with a complex issue that was both legal and metaphysics: what constitutes art?

Courts have grappled with this issue before, sometimes reverting to that old chestnut of “I know it when I see it”, and at other times resorting to famous examples, such as Justice Stephen Breyer’s invocation of Marcel Duchamp’s shovel in the famous Star Athletica, LLC vs. Varsity Brands, Inc. case.

In terms of Joe Morford vs. Maurizio Cattelan, decided in July, the South Florid District had the opportunity to explore this thorny and moot issue that some say got the court in a hell of a mess. Or banana, as the case may be.

The defendant, Cattelan, had gained some notoriety in the art world when he presented his new work titled “Comedian” at the Art Basel 2019 event in Miami Beach. The artwork consisted of a marbled yellow banana fixed with silver adhesive tape on a neutral background. Despite its simplicity, or more likely because of it, the work was a resounding success, which many interpreted to mean that the work was art or at least artful. And Cattelan sold several copies and proofs of the work, making hundreds of thousands of dollars in revenue. Serious money. In this case, however, an artist from Glendale, California, whose craft was also fruit-related, took notice.

This artist, Morford, had created and marketed a work years before that also featured a yellow banana affixed with silver tape to a neutral background. His banana, to be sure, was less mottled and angled at a more acute angle, but the thrust of the work, it seemed to him, had been copied. So he sued in Florida, and Catellan, in response, retained the services of two law firms that tried to give the slip to Morford, filing a motion under Federal Rule of Civil Procedure 12(b) ( 6) to dismiss the case in its entirety. Morford, who is representing himself in the case, fought back, opposing the motion and taking the issues to the court for determination.

The motion presented the question of whether and to what extent Morford’s art was protectable under copyright law, which put Catellan in a difficult position because he probably did not want to argue that Morford’s art lacked protection because that would mean his own art, which was equally minimalist, would also be left unprotected. Given the threshold of what is creatively sufficient for a work to be copyrightable, which is relatively low to reflect an appreciation of, and provide protection for, works that are minimalist or more modest but nonetheless original to the artist, it was not difficult for the court to conclude that the work in question was protected by copyright. But the more difficult question was whether an actionable copy of this work had taken place.

The court, in deciding this question, looked to whether the works were “substantially similar”, applying what it acknowledged was an “elusive test”. The court easily concluded that neither party can claim protection for the “idea of ​​a taped banana,” because ideas are not copyrightable. Only the expression of an idea deserves protection. The court went on to aptly note that the plaintiff, however, may be able to claim copyright protection in the “selection, coordination, [and] disposal” of otherwise unprotectable items, such as the banana or the tape. Comparing the works, the court observed that in both cases, “a single piece of silver tape rises from left to right at an angle, securing a centered yellow banana, tilted downward from left to right, against a wall” and that “the banana and the tape intersect roughly in the middle of each. In other words, there were definitely similarities between the two potassium-rich works.

After noting that courts have long recognized that the substantial similarity test involves the “problem of ‘line drawing’ and acknowledging the low threshold that must be met at the motion to dismiss stage, the court ultimately dismissed the motion and allowed the matter to proceed. to discover.

This case, while narrow, appears to be consistent with the letter and spirit of the Copyright Act. And Cattelan, who would be the second banana here, has viable defenses based on the facts. The defense of “independent creation”, for example, which applies as a bar to any action for infringement if the defendant can prove that he created the work in question without reference to the work of the plaintiff, seems to be a course of action. This defense, however, relies heavily on credibility and is understandably difficult to prove at all stages prior to trial. Morford, who as mentioned is acting pro se, did well to move the case to Discovery, where he will surely learn more about Catellan’s creation of his fruit-based and potentially infringing hit.


Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and regularly writes and speaks on copyright issues. He can be reached at [email protected]and you can follow his law firm on Instagram: @veniceartlaw.