Copyright Troll Lawsuit Over Duct Taped Banana Picture

from the weak-copyright dept

Back in December, it’s likely you heard the wacky story about the “art installation” at the Art Basel gallery in Florida of a banana duct taped to the wall, which sold for $120,000. You may have also heard about how someone stepped in and ate the banana, but the original purchasers were still happy, despite the recognized absurdity of the whole thing. Anyway, because it’s been a few months since we last had a story about copyright and bananas, we need to tell you that a copyright lawsuit has been filed against the owners of the website ClickOrlando, claiming that they used a photograph of the duct taped banana taken by John Taggart without licensing it in its article about the artwork. The lawsuit was filed by frequently in trouble copyright troll, Richard Liebowitz. The lawsuit was first reported by Law360, though it’s behind their paywall.

Given Liebowitz’s role, I immediately wondered how legit the lawsuit was. It is certainly possible that a news org might infringe on someone’s copyright, though news organizations can frequently claim fair use under the law, especially since “news reporting” is one of the defined categories for fair use. After seeing the actual exhibits, I’m actually left wondering whether or not Taggart’s copyright is valid at all. Straight from the complaint’s Exhibit B here is the supposedly infringing use:

So… I have questions. First, how is Liebowitz sure that this is Taggart’s photo? The banana was on display for a few days and tons of people were able to come by and photograph it. The images do look the same, so it could be. The banana coloration certainly looks the same, though I imagine that would be true for lots of people who took a picture around the same time.

But, still, remember that copyright is only supposed to cover the creative input of the photographer. Often that includes things like the positioning, framing, lighting, etc. But, in this case, how much of that came from Taggart vs. the gallery? Obviously the artwork was set up in the gallery. Taggart had no say in the positioning of the banana. The lighting was also done by the gallery. So what is the creativity here? Taking a photo head on? How much of the wall is included in the background? It is difficult to see how those choices are deserving of much in the way of copyright. That is, even if there is a copyright here, it would be a very, very thin layer of copyright. On top of that, it would seem that the site would have very strong fair use arguments. Beyond the fact that it was used for reporting, and beyond the fact that whatever copyright interest Taggart might have would be quite weak, the fact that tons of visitors to the gallery took similar pictures of the banana would suggest that Taggart’s market was limited, and thus this use would not have much of an impact on the wider market.

While this lawsuit might not be quite as egregiously bad as some of Liebowitz’s other lawsuits, it’s still pretty bananas.

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Comments on “Copyright Troll Lawsuit Over Duct Taped Banana Picture”

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This comment has been deemed insightful by the community.
Anonymous Anonymous Coward (profile) says:

Re: Re:

The intrinsic value of (especially modern) art sometimes escapes me. Artists often ascribe underlying metaphoric meaning to their works and sometimes the public picks up on those assertions. But in this case, I also have a question that isn’t copyright related at all. The question is: what does it mean?

Rekrul says:

Re: Re: Re:

The intrinsic value of (especially modern) art sometimes escapes me. Artists often ascribe underlying metaphoric meaning to their works and sometimes the public picks up on those assertions.

My favorite art-related humorous story, which has been going around for years;

A bunch of visitors to a museum were standing around commenting on an art piece consisting of a bunch of rusty plumbing parts, debating what it meant, the brilliance of the artist, etc. Then a plumber emerged from an employee area, gathered up all the parts and dumped them in a trash can.

It’s probably a joke, but it could very well be real. You can throw pretty much anything in the corner of a museum and most people will believe it’s art. And even if they don’t actually think it’s art themselves, few will say it for fear that others will look down on them for not appreciating it. You could put up a canvas that a monkey flung his feces against, but if you give it a fancy name and pretend that you made it intentionally, people will stand around debating your "vision".

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re:

Oh, it’s definitely art. But that’s not difficult; all that’s really required is artistic intent. The question is whether it’s any good. That’s subjective though, so don’t be surprised when some people say it is.

That said, you might enjoy reading Tom Wolfe’s excellent essay on this, The Painted Word. (There’s a similar one he did on architecture as well). The gist is that yes, your kid really could do something as good, but the value that is seen in this sort of art by the members of the artistic community comes from who did it and why.

Bruce C. says:

Re: Sometimes the perceived value...

is just in the name of the artist who creates it. So the first step to selling a duct-taped banana for $100k is to become famous.

Good artists almost always are making a statement, but sometimes the statement is "boy my customers are gullible". People overpay for lots of things just because of the brand name, designer or celebrity endorsement associated with the product. This is just a more extreme example.

Anonymous Coward says:

Re: Re:

But what you won’t read about is that the one who ate the banana could have been a confederate of the artist, and also that the supposed buyer may not even exist (how could we possibly verify such a thing?) Meanwhile, someone vandalized the law with the statement "Epstein didn’t kill himself" and he was, unlike the banana eater, promptly arrested, and the message was covered up, perhaps because it was deemed anti-israeli. I prefer to think the true artist here was the one arrested, a far more excellent display of bravery, and achieved without any iconoclasm emulated. Bravo! Bravo! I want to see the second act!

Anonymous Coward says:

Re: Re:

But if there is no copyright then anyone can tape bananas to walls. Don’t think this crisis will be limited to bananas either. Pretty soon people will be taping apples, oranges, pears, plums, even the oft misclassified tomato. From here it’s a short slide down the slippery slope to cucumbers, broccoli, every vegetable imaginable. Next comes dogs and cats tapped to walls together…mass hysteria.

Won’t someone think of the children?

Federico (profile) says:

2D reproduction of 3D object à la Bridgeman v. Corel

Let’s hope the case is not dismissed on some procedural grounds. I want to learn whether a simple reproduction of a common 3D object, virtually indistinguishable from thousands of others, is copyrightable.

Liebowitz might be stupid enough to fight the case through several appeals and if we’re lucky we’ll get a new Bridgeman v. Corel ruling, this time for 2D reproductions of 3D objects. I’m not holding my breathe though.

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