In 2001 Joe Morford published ‘Banana and Orange’: two green panels, an orange at the top, a banana below, held in place with adhesive tape. In 2019 Maurizio Cattelan presented ‘Comedian’: a banana stuck to the wall with a strip of tape. In January 2021 Morford sued Cattelan for copyright infringement in a federal court in Florida. He lost at first instance in June 2023 and on appeal in August 2024, and in April 2025 the US Supreme Court declined to review the case.
The district court granted summary judgment to Cattelan on three grounds. The most striking was the distinction between idea and expression: Morford cannot claim copyright in the idea of fixing a banana to a wall with adhesive tape, nor in the bananas or the tape. The judge also applied the so-called merger doctrine: there are few practical ways to attach a banana to a wall without covering it, and placing the tape diagonally is an almost obvious solution, so that general arrangement cannot belong to anyone. What was protectable in Morford’s work were his specific choices: the green panels, the masking-tape borders, the orange above and the banana below, their placement. And there the two works differed in almost everything: background, border, number of fruits, material, height, orientation, angle. The judge added a third reason: Cattelan explained how he had arrived at his work, from an idea he had already used in 2018, and Morford offered nothing capable of rebutting that independent creation.
The appeal upheld the result. The US Court of Appeals for the Eleventh Circuit stopped at an earlier step: proof that copying had taken place. Absent direct evidence, copying can be inferred in two ways: by showing that the defendant had access to the earlier work and that the two are similar, or by showing a similarity so extraordinary that it rules out coincidence, independent creation or a common source. Morford managed neither.
The first route is the more far-reaching. Morford argued that his work had been online for years: on a public Facebook page, in a YouTube video and on a blog, with visits from more than twenty-five countries. The court replied that the mere availability of the work on the internet, without more, is too speculative to establish a link between Cattelan and Morford. Nor had any significant success or wide dissemination been shown. That something is within anyone’s reach does not prove that a particular person has seen it.
The second route was closed off by an almost comic detail. To infer copying without access, the similarity must be so great that no other explanation is possible. Both works have a banana and tape, the court acknowledged; but ‘Banana and Orange’ also has an orange, and ‘Comedian’ does not. The orange was the difference the court gave as an example of the similarity falling short of that threshold.
To be precise, ‘no one can own the idea of taping a banana to a wall’ was said by the trial judge, not by the appeals court, which left that point unexamined. The appellate ruling, moreover, is unpublished and therefore not precedent: it decides the case between the parties, but does not bind other courts in the circuit. And the Supreme Court’s refusal to review it does not mean that it approved the reasoning; it merely leaves the decision in place.
We live surrounded by available works: almost everything that gets made ends up on some network, visible to anyone in any country. That universal availability looks very much like having been seen, and in this case the law refused to confuse the two. It required a link between a particular person and a particular work, and putting the work online did not create one. This is my reading, not the court’s, but the consequence cuts both ways. It protects anyone who makes something similar without having seen the earlier work, because a coincidence does not become suspect merely because the precedent was online. And it leaves the modest creator who suspects that someone famous saw their work in a difficult position: their work was within everyone’s reach, and that is not enough.
In ‘The painting that surfaced in a property listing’ I wrote about a looted painting that appeared in the background of a photo of a house for sale. There the internet did make something visible, but only because some journalists had spent years searching for it and knew what they were looking at. Availability did not do the work; looking did. The Morford case says the same thing from the other side: for the law, what counts is who looked, not where the work was.
Three months after the appeal ruling, in November 2024, Sotheby’s sold one of the editions of ‘Comedian’ in New York for $6.2 million, according to the auction house itself. None of this has anything to do with the lawsuit. But it lays bare the distance between the two works: one was on the internet, within everyone’s reach; the other sold for millions in an auction room.
About the open conversation
This text reviews Joe Morford’s lawsuit against Maurizio Cattelan over ‘Comedian’. The district court (Southern District of Florida, 9 June 2023) found for Cattelan for lack of access; lack of substantial similarity in the protectable elements, having held that the idea of taping a banana to a wall is not protectable; and unrebutted independent creation. The appeal (Eleventh Circuit, 16 August 2024, unpublished opinion) affirmed solely for lack of proof of access and lack of striking similarity, and left the rest unexamined. The Supreme Court denied review on 7 April 2025. I do not claim that Cattelan copied, nor that he could not have: what has been decided is that Morford did not prove it. What interests me is the appeal court’s distinction between being available online and having been seen, which I read as a substantive question about how works circulate. If anyone wishes to contribute from the standpoint of copyright or artistic practice, this notebook remains open.
Sources
US District Court, Southern District of Florida, Morford v. Cattelan, No. 1:21-cv-20039-RNS, Order on Cross-Motions for Summary Judgment, 9 June 2023.
US Court of Appeals for the Eleventh Circuit, Morford v. Cattelan, No. 23-12263, 16 August 2024, unpublished per curiam opinion.
Supreme Court of the United States, docket No. 24-711, petition for certiorari denied 7 April 2025.
Sotheby’s, lot 10 catalogue entry and press release for the contemporary art auction of 20 November 2024, New York.
Notes
The appeal affirmed for lack of proof of access and lack of ‘striking similarity’ (a resemblance so close that it rules out coincidence, independent creation or a common source), not for lack of substantial similarity. Its footnote 2 expressly leaves substantial similarity and the merger doctrine unaddressed.
The denial of certiorari leaves the appellate decision in place, but it is neither a Supreme Court ruling on the merits nor an endorsement of its reasoning.
The $6.2 million price is the one announced by Sotheby’s. The hammer price, the price including buyer’s premium and the buyer’s identity come from the specialist press and are not used here as official figures.