During Art Basel Miami Beach in December 2019, Italian artist and provocateur Maurizio Cattelan duct-taped a banana onto a white wall. Within hours, his work, Comedian, sold for $120,000, went viral, and became that year’s perhaps most discussed artwork. On January 4, 2021, pro se plaintiff Joe Morford filed a complaint in the Southern District of Florida claiming that Cattelan’s Comedian infringes Morford’s preexisting work, Banana & Orange. On July 6, 2022, Judge Robert N. Scola, Jr. denied Cattelan’s motion to dismiss, holding that Morford adequately alleged that Comedian has a substantial similarity to the protected elements of Banana & Orange. As permitted by the Court’s Local Rules, after Cattelan filed his answer and affirmative defenses to Morford’s complaint, the parties attempted to resolve their dispute through mediation. According to the mediator’s report, an in-person mediation occurred on October 13, 2022, but the matter did not settle. The banana is ripe for adjudication.
Cattelan’s Motion to Dismiss
Cattelan moved to dismiss Morford’s infringement and plagiarism claims on three grounds:
- Morford cannot claim ownership over a natural element (a fruit) and a functional component (duct tape). U.S. copyright law does not protect “elements of expression that nature displays for all observers,” which, according to Cattelan, excludes the main components of Morford’s artwork.
- Morford’s work is only protected by a “thin” copyright, and there is no substantial similarity between the two works. Cattelan argued that Morford’s banana “is oriented horizontally, and the duct tape runs vertically. . . . By sharp contrast, [Cattelan’s banana] is oriented vertically, and the duct tape runs at approximately a 45-degree angle.”
- Cattelan lacked access to Morford’s work. Cattelan argued that Banana & Orange’s online presence was insufficient to prove that he had access to the allegedly infringed work, “a sine qua non of any copyright infringement claim.”
Morford responded that his copyright claim was not to “the idea of a banana duct-taped to a wall” or to the materials used, but rather to the “selection, coordination and arrangement” of those materials. He argued that those elements were original and thus protectable and, in this case, infringed by Cattelan’s Comedian. In his reply, Cattelan argued that Morford’s “selection, coordination and arrangement of the elements used” was “a compilation of unprotectable elements,” which could only benefit from “‘thin’ copyright protection.” From this, Cattelan (bizarrely) reasoned that the plaintiff was required to establish “‘super-substantial similarity’ or ‘virtual identity’ of the non-protectable, or unoriginal, elements of the compilation.” According to Cattelan, “the diptych nature of [Morford’s] work [and] the presence of an orange, the green backgrounds, and the angles of the banana” are unique elements that are absent in Cattelan’s piece.
The “Abstraction-Filtration-Comparison” Test
Set against a brief historical backdrop of “banana-centric art,” Judge Scola observed that, “to ultimately succeed on his claim of copyright infringement, Morford must establish ‘(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.’” The court further explained that “copying” required Morford to show both “factual and legal copying”—in other words, “both that (1) the defendant ‘actually used’ the copyrighted work and that (2) the copied elements are ‘protected expression’ such that appropriation is legally actionable.” Morford could show “factual copying” by either “(1) direct evidence or (2) indirect evidence ‘demonstrating that [Cattelan] had access to the copyrighted work and that there are probative similarities between the allegedly infringing work and the copyrighted work.’” “Legal copying” requires “similarities between the two works [that] extend to the work’s original, protectable elements.”
The court observed that, “in most cases,” courts “look to whether ‘substantial similarity’ exists between the allegedly infringing work and the protectable elements of the copyrighted work.” However, where the plaintiff cannot establish that the alleged infringer had access to the copyrighted work, the plaintiff must meet a higher, “strikingly similar” standard. With respect to establishing “substantial similarity,” federal courts “have developed several names for the elusive test to be applied”—ultimately, “any disagreement on the appropriate test is ‘more a matter of semantics than substance.’” The court thus decided to apply the “abstraction-filtration-comparison” test, pursuant to which courts “view a copyrighted work in its component pieces and strip away unprotectable elements, ultimately comparing only the work’s protected elements to the alleged infringing work.” Applying the test’s three steps, the court concluded that, to survive a motion to dismiss, “Morford must plausibly allege that Cattelan had access to Banana & Orange and that—after dissecting Banana & Orange and stripping . . . away the non-protected elements of it—there is a substantial similarity between the two works.”
In examining whether Morford’s Banana & Orange is sufficiently “original” to warrant protection, the court observed that, because “judges are not deputized art critics . . . the originality bar is appropriately low.” Thus, “[w]hile using silver duct tape to affix a banana to a wall may not espouse the highest degree of creativity, its absurd and farcical nature” is enough of the “minimal degree of creativity” to qualify as sufficiently original.
As a threshold matter, the court first had to decide whether the “substantial similarity” or “striking similarity” standard applied. That determination depended on whether Morford alleged that Cattelan had access to Banana & Orange. The court held that, liberally construed, Morford’s allegations that Banana & Orange was available on “multiple websites” accessed in multiple countries were sufficient to plausibly plead access at the motion-to-dismiss stage.
In addressing the substantial similarity issue, the court started with the abstraction step of the “abstraction-filtration-comparison” test, describing Banana & Orange’s most objective elements. “Next, filtering,” the court rejected Morford’s “claim [to] a copyright in the idea of affixing a banana to a vertical plane using duct tape” or in “bananas or duct tape.” However, it found that Morford “may be able to claim some degree of copyright protection in the ‘selection, coordination, [and] arrangement of these otherwise unprotectable elements.’” The court observed that Morford’s infringement claim might have failed under the merger doctrine: “where there is only one or so few ways of expressing an idea,” such expression is not protected, as it would accord protection to the idea itself; and there are only so many ways to arrange a banana and duct tape. However, because Cattelan did not argue the merger doctrine in his motion, the court did not consider it. Accordingly, the court applied the final step of the “abstraction-filtration-comparison” test and found sufficient allegations of similarity “in the (few) protected elements of Banana & Orange.” While Morford’s work includes an orange, a green background and a masking tape border—elements not present in Cattelan’s Comedian—the court concluded that Morford’s duct-taped banana constitutes half of his work, rendering it “quantitatively significant to Banana & Orange” and “qualitatively significant as well,” due to its “prominent positioning.” Accordingly, the court found that the “alleged infringement of Morford’s banana [was] sufficient, quantitatively and qualitatively” to state a copyright claim.
This decision only tested whether Morford’s complaint was adequate, not whether he will prevail on the merits. We will continue to monitor this litigation. As the court observed in its decision, the issue of substantial similarity is “largely a problem of line drawing.” At the motion-to-dismiss stage, the court found that “some plausible line exists,” but did not decide “exactly where to draw the line.” Perhaps aware of the slippery slope inherent in line-drawing, the court did not further unpeel its reasoning.
 Born in 1960, Cattelan is best known for his provocative sculptures. His oeuvre includes La Nona Hora (1999), a wax statue of Pope John Paul II being hit by a meteorite, and Him (2001), a wax figure of Adolf Hitler in a prayer position.
 Sarah Cascone, Maurizio Cattelan Is Taping Bananas to a Wall at Art Basel Miami Beach and Selling Them for $120,000 Each, Artnet News (Dec. 4, 2019), https://news.artnet.com/market/maurizio-cattelan-banana-art-basel-miami-beach-1722516.
 Complaint, Morford v. Cattelan, No. 1:21-cv-20039-RNS (S.D. Fla. Jan. 4. 2021) (No. 1).
 Morford v. Cattelan, 2022 WL 2466775 (S.D. Fla. July 6, 2022).
 Defendant’s Answer and Affirmative Defenses, Morford v. Cattelan, No. 1:21-cv-20039-RNS (S.D. Fla. Aug. 9, 2022) (No. 57).
 Mediator’s Report, Morford v. Cattelan, No. 1:21-cv-20039-RNS (S.D. Fla. Oct. 17, 2022) (No. 59).
 Defendant’s Motion to Dismiss at 6, Morford v. Cattelan, No. 1:21-cv-20039-RNS (S.D. Fla. May 6, 2022) (No. 49).
 Id. at 13 (citing Satava v. Lowry, 323 F.3d 810, 813 (9th Cir. 2003)).
 Id. at 12.
 Motion to Dismiss at 6.
 Id. at 14.
 Response in Opposition to Motion to Dismiss at 2, Morford v. Cattelan, No. 1:21-cv-20039-RNS (S.D. Fla. May 20, 2022) (No. 50).
 Id. at 8.
 Defendant’s Reply Memorandum in Further Support of Motion to Dismiss, Morford v. Cattelan, No. 1:21-cv-20039-RNS (S.D. Fla. Jun. 10, 2022) (No. 53).
 Id. at 2.
 Id. at 5-6 (emphasis in original) (citing Thomas Home Corp. v. Reve Dev. Corp., 2007 WL 9747250, at *9 (N.D. Fla. Apr. 26, 2007)).
 Reply at 12.
 Morford, 2022 WL 2466775, at *3 (citing Compulife Software Inc. v. Newman, 959 F.3d 1288, 1301 (11th Cir. 2020) (quoting Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1541 (11th Cir. 1996)).
 Id. (citing Newman, 959 F.3d at 1301 (citing BUC Int’l Corp. v. Int’l Yacht Council Ltd., 489 F.3d 1129, 1148 n.40 (11th Cir. 2007); MiTek Holdings, Inc. v. Arce Eng’g Co., 89 F.3d 1548, 1554 (11th Cir. 1996)).
 Id. at *4 (citing Newman, 959 F.3d at 1301 (quoting MiTek, 89 F.3d at 1554)).
 Id. (citing Newman, 959 F.3d at 1306; Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 359 (1991)).
 Id. (citing Newman, 959 F.3d at 1302; BUC Int’l Corp., 489 F.3d at 1147-48).
 Id. (citing Calhoun v. Lillenas Publ’g, 298 F.3d 1228, 1232 n.6 (11th Cir. 1999)); Olem Shoe Corp. v. Wash. Shoe Corp., 591 F. App’x 873, 885 (11th Cir. 2015)).
 Id. at *2.
 Morford, 2022 WL 2466775, at *5 (citing Feist, 499 U.S. at 348; Country Kids ‘N City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1284 n.5 (10th Cir. 1996)).
 Id. at *4.
 Id. at *5.
 Id. at *6.
 Id. at *9 (citing Folkens v. Wyland Worldwide, LLC, 882 F.3d 768, 775 (9th Cir. 2018); Norris Indus., Inc. v. Int’l Tel. & Tel. Corp., 696 F.2d 918, 924 (11th Cir. 1983)).
 Id. at *10 (citing Off Lease Only, Inc. v. Lakeland Motors, LLC, 825 F. App’x 722, 726 (11th Cir. 2020)).
 Morford, 2022 WL 2466775, at *10 (citing BUC Int’l Corp., 489 F.3d at 1142).
 Id. at *11.