Fruit for thought: bananas, toilets, Trump and the law
By Ryan J Leck, Arts Law volunteer, and Alex Ho, Arts Law secondee lawyer (McCullough Robertson, Sydney).
Last month, the latest edition of Italian artist Maurizio Cattelan’s controversial piece, Comedian (comprised of a banana duct-taped to a wall), sold for a record-high $6.2 million USD. The piece was purchased by cryptocurrency entrepreneur Justin Sun, who now retains the right to recreate the artwork, but not multiple co-existing copies. Apart from the banana displayed at the auction house (which Sun ate shortly after) and a certificate of authenticity, the owner of the work received a 14-page manual that specifies how to affix the banana to the wall.
Naturally, our thoughts turned to whether Comedian is a copyright work in Australia?
The US position
In a recent United States (US) District Court case between Cattelan and artist Joe Morford, Comedian was viewed as a “three-dimensional wall sculpture”. The case involved allegations of copyright infringement. Miami-based artist Joe Morford, whose work Banana and Orange also involved duct-taping fruits to a wall, accused Cattelan of taking his idea and initially, it seemed like his claims might have legs as he registered the work for copyright in 2020 and Catellan’s motion to dismiss was rejected in the first instance as US District Judge Robert N. Scola, Jr, noted the ‘substantial similarity’ between the works. Neither registration, nor the substantial similarity tests are features of Australian copyright law.
In the US copyright protection subsists in sculptural works. As for the instructional manual, it satisfies the threshold for original literary works and is therefore also copyright protected given that it is an original work made specifically for installing Comedian. In the lawsuit, Judge Scola made a detailed list of the comparable elements of Banana and Orange and Comedian, including the specific orientation and placement of the banana. These details, along with specifications about the type of banana and how to replace the banana if it decays, are all included in the manual, emphasise and satisfy the requirements of originality.
Protections under Australian copyright law
Comedian, whilst constructed using every day, perishable materials, features a uniquely deliberate arrangement of the banana and tape.
Our Copyright Act provides that copyright subsists in both artistic and literary works, which include paintings, sculptures or photographs, where they are expressed in a material form. The physical installation of Comedian and the accompanying manual are concrete and perceptible forms of the art. They exist beyond mere ideas or concepts and are recorded in tangible forms, meeting the statutory threshold for copyright protection in Australia.
The next question is whether they are sufficiently original. The works must satisfy a degree of independent intellectual effort and must originate from their (human) creator. Cattelan’s unique vision and execution of the artwork in both the physical installation and the instructional manual are original and attributable only to him.
By classifying both the physical installation and its explanatory manual as separate yet intertwined copyrightable works, Australian law may well protect Comedian.
Another of Catellan’s sculptures, America (a fully functioning 18-karat gold toilet) is worth considering, too. America is undoubtedly physically unique, however, its capacity to be installed as a full-functioning toilet would form part of the creative framework of the artwork itself. In 2016, America was installed in the bathrooms of the Solomon R. Guggenheim Museum in New York in which it was first exhibited. Later, in 2017, it was installed in a water closet at Blenheim Palace in the United Kingdom.
Interestingly, in 2017, in response to then-president Donald Trump’s request to borrow a Van Gogh painting from the Guggenheim Museum, the museum suggested that Trump could alternatively borrow the solid gold toilet America. The museum stated that despite the work being “extremely valuable and somewhat fragile… we would provide all the instructions for its installation and care.”
What this means for Australia’s Arts Scene
The copyright characterisation we’ve put forward here, of Comedian, underscores the breadth of protection afforded to authors and creative visionaries. Artists, curators and institutions can be assured that even unconventional or ephemeral installations, supported by written instructions, can be safeguarded under copyright law. This protection encourages artistic experimentation, knowing that innovative works and their accompanying materials – no matter how unusual – are respected as original intellectual property.
The recognition of a piece like Comedian as both an artistic and literary work also reinforces the importance of documentation within Australia’s cultural landscape, suggesting that explanatory manuals or guides for works may be regarded not as mere afterthoughts, but as key components of creative production. In this environment, creatives can confidently push boundaries knowing that their original expressions captured in writing and expressed in sculptural or other artistic form, are likely to be legally protected.
At Arts Law we stand with all artists and their rights to protect their works. Protecting the rights of artists ensures that innovation and expression continue to flourish, and we value the immense contributions that creativity brings to our cultural fabric here in Australia.
If you would like to know more about copyright, please see this information we have prepared for a detailed explanation of the various forms of protection here.
