Italian artist Maurizio Cattelan, known for his satirical sculptures, has found himself in the unique position of being a defendant in unrelated copyright suits on both sides of the Atlantic.
On July 8, 2022 a three-judge intellectual property court in Paris dismissed a claim by wax sculptor Daniel Druet seeking to be considered the “sole author” of eight sculptures he made in wax, polyester resin and fiberglass between 1999 and 2006 for Cattelan. In holding that Cattelan was the sole author of the works, the Court relied on Article 111-1 of the Intellectual Property Code, which reads in part as follows:
The author of a work of the mind shall enjoy in that work, by the mere fact of its creation, an exclusive incorporeal property right which shall be enforceable against all persons.
The Intellectual Property Code further provides that there is a rebuttable presumption that authorship belongs to that person or persons under whose name the work is first presented – in this case the works were exhibited under Cattelan’s name. Although there was a dispute as to the specificity of the instructions Cattelan provided to Druet, the Court found that Cattelan had made all the key creative decisions as to the sculptures and their staging. Druet’s lawyers indicated that he had not decided whether to appeal the decision. Disputes between fabricators of an artwork and the artist who commissioned the fabrication are not new, and, in fact, some artists are now acknowledging the contributions of their fabricators.
Cattelan has not fared as well on this side of the pond. On July 6, 2022 the U.S. District Court for the Southern District of Florida denied Cattelan’s motion to dismiss a suit by pro se plaintiff Joe Morford. Morford claimed that Cattelan’s work “Comedian” infringed his registered copyright in “Banana and Orange.” “Comedian,” which consisted (past tense because the original has been eaten) of a banana duct taped to a wall, was a huge hit at Art Basel in Miami Beach in 2019. Cattelan sold three copies of the work and two proofs for a total of more than $390,000.
Granting leeway to the pro se plaintiff, the court found that Morford had sufficiently alleged access and substantial similarity to survive the motion to dismiss. The opinion contains a detailed analysis of substantial similarity, applying a three part test of (i) abstraction (breaking down the work into its constituent parts); (ii) filtration (filtering out the unprotectable elements) and (iii) comparison (comparing the protectable elements of both works). Using this test, the Court found that, at the motion to dismiss stage, sufficient similarity had been adequately alleged:
In both works, a single piece of silver duct tape runs upward from left to right at an angle, affixing a centered yellow banana, angled downward left to right, against a wall. In both works, the banana and the duct tape intersect at roughly the midpoints of each, although the duct tape is less centered on the banana in Morford’s work than in Comedian.