"A federal judge in Miami has tossed an artist’s lawsuit contending that his copyrighted artwork consisting of a plastic orange and a banana duct taped to a green panel was infringed by a second banana display.
U.S. District Judge Robert N. Scola Jr. of the Southern District of Florida ruled against pro se plaintiff Joe Morford, who developed his artwork entitled Banana and Orange in California in 2001. He sued after Italian artist Maurizio Cattelan displayed a banana duct taped to a wall at the Art Basel Miami show in 2019.
Cattelan charged $120,000 for his work called Comedian to further demonstrate its absurdity, according to Scola’s June 12 opinion.
Cattelan had testified that his inspiration for Comedian was drawn from a work that he created for New York Magazine in 2018 that depicted a banana hanging from a billboard with red duct tape. He said he was not aware of Banana and Orange and had not heard of Morford before he filed the suit.
Morford argued that Banana and Orange could have been seen because it was posted on Facebook, in a YouTube video and in a blog post.
But Scola said access to a copyrighted work can’t be proven simply because a defendant had some possible opportunity to review it.
“A work’s mere presence on the internet alone,” Scola said, “is insufficient to demonstrate access without some additional proof that the defendant had some relevant nexus to the plaintiff’s work or that the plaintiff’s work enjoyed some meaningful level of popularity.”
This article was originally posted in the The ABA Journal
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