Can a Duct-taped Banana be a Copyrightable Work of Art?

December 14, 2024

By Alanna Pitre

Emerging into public consciousness in the late 1960s, conceptual art was developed by artists as a means of anti-institutional expression.^[1] Rather than adhering to the traditional art-making process, where craftsmanship, aesthetics, and high-end materials come together to create a tangible– often commercialized– product like a sculpture or a painting, conceptual artists give primacy to the intellectual properties of their work. That is, the ideas behind (and provoked by) conceptual art are what define it, expanding the art-perception experience to include active thought. The essence of the artwork lies in such ideas, which take precedence over its physical manifestation. By prioritizing intellectual engagement over technique and aesthetics, the materials used to realize the ideas of artists need not be extravagant or even permanent.

Defiance of the art world status quo has given conceptual artwork a controversial quality, as some appreciate its redefinition of what art can be and others find it undeserving of being called ‘art’. Artist Marcel Duchamp, the widely-proclaimed ‘forefather’ of conceptual art, was the first to bear the brunt of anti-conceptual-art outrage with his seminal 1917 work, Fountain– an unmodified urinal which he called art as a critique of the art world’s resistance to ambiguous interpretations of what art can be.^[2] A century later, in December of 2019, a similar reaction emerged in response to Maurizio Cattelan’s Comedian– a banana duct-taped to the wall of an Art Basel Miami gallery booth.^[3] An internet frenzy established Comedian’s infamy, as people were stunned by the art market’s unpredictable values, questioning how a banana worth a mere couple of cents could be sold for a steep starting price of $120,000 as a work of art.^[4] Art and non-art world people alike wondered, ‘Had the wealthy gone bananas?’. Since that viral moment, Cattelan’s duct-taped banana has continued to provoke widespread confusion, criticism, and acclaim.

The simplicity of physically executing Comedian– that is, fastening a banana to a wall with duct tape– may lead one to ponder what makes it so special, given that anyone could replicate it. Considering Cattelan’s usage of unaltered everyday items, what makes Comedian original? This sort of deliberation not only questions the integrity of conceptual art, but also calls forward broader copyright concerns, particularly when it comes to artwork that lacks obviously distinct features. Additionally, Comedian raises the issue of the copyrightability of simple works. As a conceptual artwork, Comedian is primarily defined by Cattelan’s ideation and creative process, endowing it with an intangible quality that is not included in copyright protection of artistic ownership.^[5]

What legal challenges come up when protecting ownership of conceptual art that relies more on the expression of ideas than unique physical features for its definition? Questions of this nature came to the forefront in Morford v. Cattelan (2023), a legal dispute initiated by artist Joe Morford who accused Cattelan of copyright infringement of his earlier work, Banana & Orange (2000), which includes a banana duct-taped to a wall.^[6]

Introducing Comedian

According to Cattelan, Comedian is a social commentary on what we value^[7], intended to spark thought and dialogue among its viewers around the theme of institutional critique. By attaching a ripe grocery store banana to a prestigious Art Basel gallery wall, Comedian was stationed to be perceived as an elite work of art. Yet, given its everyday simplicity, many viewers gawked at the artwork, doubting its artistic designation while simultaneously affirming its title.^[8] What viewers regarded as an arbitrarily-staged sham was actually the culmination of over a year of artistic conceptualization and planning by Cattelan.^[9] In fact, as a conceptual artwork, the ideation process leading up to the moment the banana was stuck onto the wall invisibly infused the work with its meaning, requiring viewer contemplation to understand its true substance.^[10] Comedian carries an essence of absurdity, as it defies preconceived notions about what art should be, inspiring a wave of online parodies, where people created their own renditions of duct-taped objects on walls, mocking art world pretension while fulfilling the artwork’s goal: to incite discussion. Amid the banana craze, three editions of the artwork were sold at six-figure price points^[11], demonstrating that, by an artist’s designation, a cheap grocery store fruit could be imbued with a sense of luxury and intellectuality.

On November 20, 2024, Comedian was offered at auction for the first time at Sotheby’s New York, with an estimated value of $1-1.5 million.^[12] The work sold for $6.2 million to Justin Sun^[13] and was subsequently eaten by the crypto entrepreneur during a press conference in Hong Kong, in which he expressed his desire to continue Comedian’s legacy by loaning it to museums and potentially collaborating with SpaceX CEO Elon Musk to send the work into space. Sun has also pledged to purchase 100,000 bananas from the Manhattan fruit stand the Sotheby’s banana was purchased from.^[14]

So, what exactly is being sold when someone purchases Comedian? Contrary to one’s initial impression, no, it is not merely a piece of duct tape and a ripe banana that will inevitably spoil. Instead, buyers purchase a certificate of authenticity signed by Cattelan and installation instructions which stipulate that the banana must be hung 160 centimeters off the floor, among other details, with the banana and duct tape requiring regular replacement.^[15] Ownership of the certificate of authenticity allows buyers to recreate and display the artwork as Cattelan intended without risking copyright infringement.^[16] In essence, they buy the right to realize an idea, as Comedian– in its true form– is an idea, not a tangible object.

Conceptual Artwork and Copyright Law

What kind of protections does the law offer for conceptual art? Conceptual art has the same ambiguous relationship with the law as it does with the art world. Copyright law explicitly excludes ideas and processes– the core elements of conceptual art– from protection^[17], ensuring they remain part of the public domain to foster creativity. Copyright protection is, instead, extended to original, creative works of authorship that are fixed in a tangible medium.^[18] So, expressions of ideas through distinct artistic choices, such as composition and design, rather than the ideas themselves, can be copyrightable. Such standards create a dissonance between legal definition and artistic interpretation, as, in the eyes of the law, a conceptual artwork is defined by its physical manifestation, while the art world primarily values its conceptual underpinnings.^[19] Furthermore, very simple works, such as minimalist art, are not guaranteed copyright protection^[20], which poses a legal risk to conceptual art, as execution of conceptual works, like Comedian, is often intentionally simple, evading the overtly transformative, creative expression that defines traditional artwork.

Given the challenge of uncertain copyright protection, how do conceptual artists secure ownership and maintain control of the expression of their work? Artists and their representatives have developed their own solution that is widely respected as an art world convention: certificates of authenticity.^[21] Certificates of authenticity affirm a conceptual artist’s role in their artwork after it’s been sold so that, regardless of who executes the ideas stipulated in their instructions, it is still considered their work. As was aforementioned, Comedian’s certificate of authenticity is paired with display instructions for the concept. Anybody can affix a grocery store banana to a wall with duct tape, but only the owner of a certificate of authenticity can do so and veritably claim it is Cattelan’s Comedian. A certificate of authenticity, if deemed original and expressive enough, can be subject to copyright protection in the same way that architectural blueprints are.^[22] Legally, however, the certificate is protected as a set of creative instructions, not as a concept– despite artistic assertions that it represents the copyright of an idea.^[23]

Copyright law’s distinction between ideas and expression of ideas is explored in Morford v. Cattelan (2023), a copyright lawsuit involving Comedian, which highlights the legal procedures that can be used to identify the copyrightable elements of the work.

Morford v. Cattelan (2023)

Following Comedian’s extensive media coverage in December of 2019, artist Joe Morford alleged that the work infringed on the copyright of his piece Banana and Orange (2000), filing suit against Cattelan in 2020 in the US District Court for the Southern District of Florida.^[24] Both works include a yellow banana affixed vertically with a piece of gray duct tape– the similarity which sparked Morford’s lawsuit, as he believed Cattelan likely saw his artwork on the internet and copied it.^[25] After a denied motion to dismiss by Cattelan, both artists moved for summary judgment, with Cattelan asserting he was unaware of Banana and Orange and Morford’s work altogether during his creative process for Comedian.^[26] It was then up to the court to determine whether one artistic presentation of a duct-taped banana constituted a violation of another.

In order for Morford’s copyright infringement claim to succeed, he had to prove that Cattelan had engaged in factual and legal copying of Banana and Orange.^[27] That is, reasonable proof that Cattelan had had the opportunity to access Morford’s work and proof that the appropriated elements of his work qualify as legally-protected expression, respectively. The court considered Morford and Cattelan’s contentions in accordance with the standards of the Eleventh Circuit, which has jurisdiction in the state of Florida.

In an attempt to prove Cattelan had factually copied his work, Morford argued that Banana and Orange had been posted on the internet for years before Comedian was created, with its first appearance being on YouTube in 2008 and two other postings on Facebook and Blogpost.^[28] Morford verified that the work had been accessed by a global audience, and hence, presumed that online availability of the work would be sufficient to prove Cattelan had seen and used it.^[29] As was established by Herzog v. Castle Rock Entertainment (1999), however, a plaintiff cannot prove access by conjecturing that a defendant may have seen it.^[30] It was also found that Morford’s work had not achieved meaningful popularity, further weakening his argument, as Banana and Orange proved to be an obscure work that would not be easily encountered on the internet.^[31] Thus, the court affirmed that online availability is not enough to prove copyright infringement.

To determine legal copying, the court used the abstraction-filtration-comparison test, which entails a three-step process used to identify substantial similarities between works.^[32] First, the court ‘abstracts’ the allegedly infringed work by deconstructing it into its structural components. Next, the court filters out elements that are not copyright protectible. And finally, the court compares the remaining protectible elements with the allegedly infringing work to identify any substantial similarities. Notably, copyright law does not protect ideas, but it does protect distinct expressions of ideas^[33], and the abstraction-filtration-comparison test helps distinguish between unprotected ideas and protected expressions, providing a standardized methodology for deciding on copyright infringement claims. So, while the mere idea to affix a banana to a vertical plane cannot be protected by copyright, the way in which one expresses that idea– through artistic or contextual aspects– may qualify for copyright protection.

Upon abstracting Banana and Orange, the court found the abstract elements of the work to include two vertically stacked green rectangular panels, a masking-taped orange on the top panel, and a duct-taped banana on the lower panel, among other details. Filtration analysis of the work was conducted with consideration of the merger doctrine in copyright law, which states that an expression of an idea is not legally protected if there are limited ways of effectively expressing it.^[34] The court concluded that, as per the merger doctrine, there are few ways of visually presenting the idea of taping a banana to a wall, therefore, copyright law cannot protect such an expression.^[35] Moreover, the court found four protectible elements of Banana and Orange, including the green panels, the use of masking tape on the panels, placement of the orange above the banana, and the angular orientation of the banana.^[36] Another key disparity between the works is that Morford used plastic fruit, while Cattelan used a real fruit. Comparison of Banana and Orange’s filtered elements with Comedian revealed the only similarity between the two is the left-hand positioning of the banana stock, which is subject to the merger doctrine, as there are only two ways to orient a banana stalk: rightward or leftward.^[37]

The dissimilarities between the two works affirmed that they are unique expressions of a similar idea, and the court denied Morford’s copyright claim.^[38] Ultimately, the legal dispute between Morford and Cattelan revealed that taping a banana to a wall cannot be a copyright protected expression in itself. However, filtration of Comedian’s abstract elements, such as specifications stipulated in its certificate of authenticity, may reveal copyrightable elements of the artwork.

Conclusion

While the intangible aspects of conceptual artwork do not enjoy copyright protection, copyright disputes, such as that between Morford and Cattelan, can provide insight into the ways in which simple conceptual artworks may be copyrightable. Creative expression and copyright law are not always in concordance, but artists are able to rely on art world norms and certificates of authenticity to secure the right to their work.

With Justin Sun’s recent $6.2 million purchase of Comedian at Sotheby’s^[39], the work has found its way into virality again, perpetuating Cattelan’s commentary on the absurdity of the art world and the age-old question, “What is art?”

Supplemental Media

• Jan Estep, Who’s Afraid of Conceptual Art? (2010).
• Laura Rysman, Maurizio Cattelan Turned a Banana Into Art. Next Up: Guns, The New York Times (2024).
• Christopher Buccafusco, How Conceptual Art Challenges Copyright’s Notions of Authorial Control and Creativity, Columbia Journal of Law & The Arts (2020).
• Darren Hudson Hick, Owning What Isn’t: Copyright and Conceptual Art (2019).
• Zahr Said, Copyright’s Illogical Exclusion of Conceptual Art, Columbia Journal of Law & The Arts (2020).

About the Author

Alanna Pitre is a fourth-year student at the University of Texas at Austin, where she studies economics, philosophy, and art history. Currently, she is an intern for the Center. She can be reached at alannasofia@utexas.edu.

Bibliography:

1. Shira Wolfe, Art Movement: Conceptual Art, Artland Magazine, available at: https://magazine.artland.com/conceptual-art/ ↑
2. Id. ↑
3. Ben Cost, This banana duct-taped to a wall is yours for $120K at Art Basel, New York Post (2019), available at: https://nypost.com/2019/12/05/this-banana-duct-taped-to-a-wall-is-yours-for-120k-at-art-basel/ ↑
4. Id. ↑
5. 17 U.S.C. § 102(a) (2024) ↑
6. Morford v. Cattelan, Civil Action 21-20039-Civ-Scola (S.D. Fla. Jun. 9, 2023) ↑
7. Gareth Harris, Maurizio Cattelan; ‘Life is often tragic and comedic at the same time’, The Art Newspaper (2021), available at https://www.theartnewspaper.com/2021/11/30/maurizio-cattelan-interview-miami-beach ↑
8. Ben Cost, This banana duct-taped to a wall is yours for $120K at Art Basel, New York Post (2019), available at: https://nypost.com/2019/12/05/this-banana-duct-taped-to-a-wall-is-yours-for-120k-at-art-basel/ ↑
9. Id. ↑
10. Shira Wolfe, Art Movement: Conceptual Art, Artland Magazine, available at: https://magazine.artland.com/conceptual-art/ ↑
11. Ben Cost, This banana duct-taped to a wall is yours for $120K at Art Basel, New York Post (2019), available at: https://nypost.com/2019/12/05/this-banana-duct-taped-to-a-wall-is-yours-for-120k-at-art-basel/ ↑
12. Sotheby’s to Offer Cattelan’s ‘Comedian’, Sotheby’s (2024), available at https://www.sothebys.com/en/articles/sothebys-to-offer-maurizio-cattelans-comedian?locale=de ↑
13. Zachary Small, Who’s Laughing Now? Banana-as-Art Sells for $6.2 Million at Sotheby’s, The New York Times (2024), available at https://www.nytimes.com/2024/11/20/arts/design/cattelan-banana-sothebys-auction.html ↑
14. Sarah Maslin Nir, Art Collector Who Bought a $6 Million Banana Offers to Buy 100,000 More, The New York Times (2024), available at https://www.nytimes.com/2024/11/28/nyregion/banana-sothebys-fruit-stand.html ↑
15. Sotheby’s to Offer Cattelan’s ‘Comedian’, Sotheby’s (2024), available at https://www.sothebys.com/en/articles/sothebys-to-offer-maurizio-cattelans-comedian?locale=de ↑
16. Ronan Bergin, Certificates of Authenticity in Conceptual and Minimal Art, O’Connor & Bergin Solicitors (2020), available at https://oconnorbergin.ie/certificates-of-authenticity-in-conceptual-and-minimal-art/ ↑
17. 17 U.S.C. § 102(b) (2024) ↑
18. 17 U.S.C. § 102(a) (2024) ↑
19. Guy Rub, Owning Nothingness: Between the Legal and the Social Norms of the Art World (2019), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3433327 ↑
20. What Visual and Graphic Artists Should Know about Copyright, U.S. Copyright Office, available at https://www.copyright.gov/engage/visual-artists/ ↑
21. Sandra Aistars, Visualizing Copyright Law: Lessons from Conceptual Artists (2023), available at https://www.law.gmu.edu/pubs/papers/ls2304 ↑
22. Id. ↑
23. Id. ↑
24. Morford v. Cattelan, Civil Action 21-20039-Civ-Scola (S.D. Fla. Jun. 9, 2023) ↑
25. Id. ↑
26. Id. ↑
27. Id. ↑
28. Id. ↑
29. Id. ↑
30. Herzog v. Castle Rock Entertainment, 193 F.3d 1241 (11th Cir. 1999) ↑
31. Morford v. Cattelan, Civil Action 21-20039-Civ-Scola (S.D. Fla. Jun. 9, 2023) ↑
32. Id. ↑
33. 17 U.S.C. § 102(b) (2024) ↑
34. Morford v. Cattelan, Civil Action 21-20039-Civ-Scola (S.D. Fla. Jun. 9, 2023) ↑
35. Id. ↑
36. Id. ↑
37. Id. ↑
38. Id. ↑
39. Zachary Small, Who’s Laughing Now? Banana-as-Art Sells for $6.2 Million at Sotheby’s, The New York Times (2024), available at https://www.nytimes.com/2024/11/20/arts/design/cattelan-banana-sothebys-auction.html ↑