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.

Filed Under: banana, clickorlando, fair use, john taggart, richard liebowitz


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  • identicon
    Rekrul, 12 Feb 2020 @ 10:51am

    It amazes me what people will consider "art". Maybe I should nail an apple to the wall and someone with more money than sense will pay me a ridiculous amount of money for it.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 12 Feb 2020 @ 11:26am

      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?

      reply to this | link to this | view in chronology ]

      • icon
        Samuel Abram (profile), 12 Feb 2020 @ 11:52am

        Re: Re:

        Maybe it's artistic in the same way Andy Kaufmann are artistic: it's meant to troll people. And it worked! People are still talking about the Banana duct-taped to a wall months after it was first presented onto a gallery! Whether or not you agree it is art, it is indeed provocative!

        reply to this | link to this | view in chronology ]

        • identicon
          Bobvious 🍌, 12 Feb 2020 @ 2:20pm

          The only thing worse than being duct-taped to the wall

          is NOT being duct-taped to the wall.

          reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 13 Feb 2020 @ 3:23am

          Re: Re: Re:

          "Whether or not you agree it is art, it is indeed provocative!"

          I wonder if the founding fathers would still have enabled congress to protect science and the arts if they found that it would be used to sanctify images of duct-taped bananas.

          reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 12 Feb 2020 @ 11:59am

        'It's crazy... but it HAS to have meaning... it must be art!'

        The question is: what does it mean?

        I can answer that one: Call something absurd 'art' and there will almost always be someone with more money than sense willing to throw piles of money at you to show how 'cultured' they are.

        reply to this | link to this | view in chronology ]

      • identicon
        Rekrul, 13 Feb 2020 @ 2:11pm

        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".

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Feb 2020 @ 12:54pm

      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.

      reply to this | link to this | view in chronology ]

    • identicon
      Bruce C., 12 Feb 2020 @ 1:30pm

      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.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Feb 2020 @ 5:01pm

      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!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Feb 2020 @ 10:57am

    If the copyright upon this banana taped artwork is not honored, then there will be no incentive to produce additional produce taped artwork.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Feb 2020 @ 11:30am

      Re:

      The copyright on the original artwork is not in question here. It's a copyright on the photograph of the artwork that is involved.

      I wonder if the original photographer got a license to market a derivative work of the original artwork?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Feb 2020 @ 11:44am

        Re: Re:

        The copyright on the original artwork is not in question

        It has no copyright, as it is not fixed in the sense needed for copyright, as it would stink after a week or two.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 12 Feb 2020 @ 12:02pm

          Re: Re: Re:

          Was intended to be a joke.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 12 Feb 2020 @ 5:04pm

            Re: Re: Re: Re:

            I mean, most Techdirt readers would expect your original comment to be a joke, but you have to remember there's a subset of "readers" who would salivate at the idea of suing anyone and everyone who mentions "duct tape" in a sentence.

            reply to this | link to this | view in chronology ]

        • identicon
          cpt kangarooski, 12 Feb 2020 @ 12:58pm

          Re: Re: Re:

          The fixation requirement was satisfied. Remember, it's meant to capture just about everything. Only extremely short lived copies (like the light on a CRT or -- and this has been argued both ways -- data in RAM) isn't fixed.

          reply to this | link to this | view in chronology ]

        • identicon
          Michael, 13 Feb 2020 @ 5:51am

          Re: Re: Re:

          as it is not fixed in the sense needed for copyright

          Had they used Gorilla Tape, it would have been.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Feb 2020 @ 4:57pm

      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?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Feb 2020 @ 11:36am

    Keeping your name in the limelight: Copyright infringement.

    I guess artists would rather remain as unknown as possible

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 12 Feb 2020 @ 12:50pm

    Liebowitz is up to his normal monkey business.

    reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 12 Feb 2020 @ 1:49pm

    First it was Narruto, now it's a banana. Mike really needs a new hobby.

    reply to this | link to this | view in chronology ]

  • identicon
    Narruto, 12 Feb 2020 @ 4:28pm

    Did someone say banana?

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 12 Feb 2020 @ 5:52pm

    I wonder...

    Who would own the copyright if a monkey took the picture?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Feb 2020 @ 9:42am

    Duct taped Bananas are nothing new.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Feb 2020 @ 12:44pm

    Oh YEAH! I'd pay a $120,000 for THAT Banana! Look at the way it just lays there.. unable to move or do anything? WTF?

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 13 Feb 2020 @ 1:24pm

    This is banna's

    Dont Ape these people on..
    Lets not monkey around this subject.

    reply to this | link to this | view in chronology ]

  • icon
    Federico (profile), 24 Feb 2020 @ 7:15am

    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.

    reply to this | link to this | view in chronology ]


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