Understanding the Copyright Appeal in Morford v. Cattelan

In a high-profile copyright dispute, visual artist Joe Morford filed a petition for a writ of certiorari before the Supreme Court of the United States. The case centers on Morford's claim that his artwork, "Banana and Orange," was copied without permission by renowned artist Maurizio Cattelan in his infamous installation "Comedian," often referred to as "the duct-tape banana." Morford's "Comedian" sold for $120,000 at Art Basel Miami and later a price of $6 million for one of a limited edition of three.

Morford's appeal highlights two central copyright issues: striking similarity and reasonable access. These issues form the crux of the legal battle and raise broader questions about how courts interpret copyright protection for visual art, particularly in the digital age.

Copyright Infringement Standard

Copyright infringement requires proof of actual copying of a copyrighted work. Actual copying can be established in two ways: (1) through striking similarity between the works or (2) through probative similarity.

Probative similarity examines whether sufficient similarities exist between two works to suggest that the defendant may have copied from the plaintiff's work. Evidence of access to the copyrighted work must be provided to establish probative similarity.

In contrast, striking similarity requires the works to be "virtually identical" and does not necessitate proof of access to the copyrighted work. The criteria for demonstrating "virtually identical" in this context include (1) bodily appropriation and (2) substantial similarity.

Bodily appropriation means that the entire work must be virtually identical to the copyrighted work, indicating wholesale copying. Substantial similarity, on the other hand, focuses on specific portions of the works to determine factual copying and then compares those portions to the overall work to assess copying.

Striking Similarity: Is a Banana Just a Banana?

The first core issue in the appeal is whether Morford's Banana and Orange and Cattelan's Comedian are "strikingly similar." The petitioner argues that both artworks depict bananas taped to a wall in a highly similar manner, creating a visual illusion through an unconventional combination of objects.

However, the courts dismissed this argument by examining the entire artwork rather than concentrating solely on the duct-tape bananas. The Eleventh Circuit panel ruled that the presence of an additional orange in Morford's work meant the two pieces were not identical. Morford contends that this approach is flawed, asserting that striking similarity should be assessed by focusing on the allegedly infringed element—in this case, the taped banana—rather than extraneous components.

The petitioner cites precedents from various circuits that have recognized striking similarity in parts of works, especially compilations of otherwise unprotected elements. The Eleventh Circuit's reliance on a "bodily appropriation" standard—requiring the entire work to be identical—conflicts with established legal principles that favor a "substantial similarity" standard. According to Morford, this departure from precedent warrants review by the Supreme Court.

Reasonable Access: The Internet and Copyright Law

The second major issue in the appeal is access. Morford argues that his work, Banana and Orange, was widely available online for years before Cattelan's Comedian debuted. The Eleventh Circuit applied the "inverse ratio rule," a controversial doctrine in copyright law suggesting that a plaintiff must prove greater similarity when access is not well-established.

Morford challenges the court's reliance on this rule, particularly its assumption that his work, as a lesser-known piece, was less likely to be discovered. He presented evidence showing that his artwork had been publicly accessible through social media platforms and websites for over a decade, reaching viewers in 25 countries.

Additionally, the petitioner raises concerns about the outdated nature of the "inverse ratio rule" in the digital age, where the Internet has made even obscure works easily discoverable. This rule suggests that a popular piece must show less similarity, while an unknown work must demonstrate greater similarity to establish exposure. Morford proposes that courts should consider social media analytics as evidence of access, marking a First Impression issue that the Supreme Court has yet to address.

The Circuit Split: A Call for Uniformity

Morford's appeal highlights a recurring theme: the lack of uniformity among the circuits regarding striking similarity and access standards. He emphasizes that different circuits apply varying standards, resulting in inconsistent outcomes based on the jurisdiction in which a case is filed. For example, the Eleventh Circuit evaluates striking similarity claims using the concept of bodily appropriation instead of substantial similarity. This approach differs from other circuits that have recognized substantial similarity as a valid standard for works of artistic compilation.

Additionally, while some circuits have outright rejected the "inverse ratio rule," others continue to apply it. Recently, the Ninth Circuit abrogated the rule, acknowledging that it unfairly disadvantages lesser-known artists by making it more challenging for them to prove access. Morford argues that the Supreme Court must resolve these conflicting interpretations to ensure fair and consistent copyright protection across the United States.

Implications for Artists and Copyright Law

The outcome of Morford v. Cattelan could have significant implications for artists and copyright law. If the Supreme Court decides to hear the case, it will address important questions about how courts should assess similarity and access in copyright infringement cases involving visual art. This case highlights the challenges that lesser-known artists face in protecting their work from unauthorized use, especially in an era where the Internet makes even obscure creations accessible worldwide.

At its core, Morford's appeal is about ensuring that copyright protection is not limited to widely celebrated works or famous artists. As he states, "If copyright protection only applies to things people like, then it does not work." The case underscores the necessity of protecting all creative expressions, regardless of their popularity or commercial success.

Conclusion

The Morford v. Cattelan appeal offers the Supreme Court an opportunity to clarify important aspects of copyright law, especially regarding visual art in the digital age. Central to the case are the issues of striking similarity and reasonable access, which have broader implications for how courts protect artistic works from unauthorized copying. If Morford's appeal is successful, it could result in greater protection for artists, ensuring that outdated legal interpretations do not hinder creativity.