According to the District Court of Miami, Maurizio Cattelan’s “Comedian” – the banana attached to the wall with grey duct tape, exhibited in 2019 at the Art Basel Miami Beach fair – does not infringe the American artist Joe Morford’s copyright. The latter had conceived the idea of taping fruit to a wall as a performance art piece back in 2000. The work is entitled “Banana and Orange” and has been shared over the years by Morford himself on various online platforms (YouTube, Facebook, etc.).
Miami’s judge, called upon by the American artist, preliminarily held that Cattelan’s work did not infringe Morford’s copyright because it was not duly proven that Cattelan could have had actual knowledge of the earlier work.
In addition, the Court pointed out that applying the “abstraction-filtration-comparison” test (already illustrated in Compulife Software Inc. v. Newman, 959 F.3 d 1303) would in any case highlight the fact that very few elements of Morford’s work – when extracted and filtered from the performance as a whole (e.g., a banana, duct tape or a simple wall cannot be granted copyright protection) – can benefit from copyright protection: copyright protection extends only to a work’s expressive elements, not to the idea that constitutes its source.
It is confirmed, once again, the importance of the distinction between the corpus mysticum (the idea) and the corpus mechanicum (its concrete realization), particularly difficult to identify when analyzing works such as those of Morford and Cattelan.