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

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]