It’s bananas! At IP Whiteboard, and as intellectual property lawyers generally, we have had the privilege of writing about and considering some rather eccentric issues over the years. Today’s discussion about a man who ate a banana, which was an “installation” in an art gallery must surely be in the top 5.
First, a refresher. The Guardian reports that:
An artwork that sold last week for $120,000 and was hailed as “a symbol of global trade” has been eaten, in what might seem a fitting end for something that was an ever-ripening banana duct-taped to a wall.
The piece, titled Comedian, by Italian artist Maurizio Cattelan was on show at the international gallery Perrotin at Art Basel in Miami when New York performance artist David Datuna ate it, saying he was hungry.
Artist Maurizio Cattelan hasn’t had much luck with installations: his solid gold toilet artwork was stolen from Blenheim Palace in southern England. The consumption of his artwork has drawn paralells to the self-destructing £1m painting by British street artist Banksy at Sotheby’s in London in 2018. The banana also invited comparisons with Marcel Duchamp’s urinal and Jeff Koons’ vacuum cleaners.
What a world! We can’t resist some further analysis here. The consumption in question occurred in the United States in Miami, but we’ll think about this through the lens of Australian copyright law.
But does it a-peel as art?
While most people think of an artistic work as a painting or sculpture, “art” in today’s world can take many forms.
The Australian Copyright Act 1968 (Cth) has a more specific meaning. In that context, “artistic work” means:
- a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not (a perhaps useful carve out for some artists!);
- a building or a model of a building, whether the building or model is of artistic quality or not; or
- a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b).
Some of the species of artistic works referred to in the definition of “artistic work” are themselves further defined in subsection 10(1) of the Copyright Act:
- a “drawing” includes a diagram, map, chart or plan;
- an “engraving” includes an etching, lithograph, product of photogravure, woodcut, print or similar work, not being a photograph;
- a “photograph” means a product of photography or of a process similar to photography, other than an article or thing in which visual images forming part of a cinematograph film have been embodied, and includes a product of xerography;
- a “sculpture” includes a cast or model made for purposes of sculpture; and
- a “building” includes a structure of any kind.
What about bananas stuck on walls with gaff tape? Well, case law takes us to a galaxy far, far away – the United Kingdom. Lucasfilm Ltd v Ainsworth concerned the Star Wars films. One of the issues that arose in this rather bizarre and long-running piece of litigation was whether the armour and helmets used in the film were “sculptures”. Justice Mann held that they were not. His Lordship considered the authorities and made the following conclusions:
- some regard must be had to the normal use of the word “sculpture” and it is inappropriate to stray too far from what would normally be regarded as a sculpture, although the concept can extend beyond what one would normally expect to be “art” in the sense of the sort of things one expects to find in art galleries;
- no judgment is to be made about artistic worth or merit;
- not every three-dimensional representation of a concept is a sculpture;
- it is of the essence of a sculpture that the object has, as part of its creator’s purpose, a visual appeal in the sense that it might be enjoyed for that purpose alone, whether or not it might have another purpose too;
- the fact that the object has some other use does not disqualify it from being a sculpture, but it still must have the intrinsic quality of being enjoyed as a visual thing; and
- the kind of process of fabrication is relevant but not conclusive, so a purely functional and non-decorative thing is not a sculpture merely because it is carved out of wood or stone.
In Lincoln Industries Ltd v Wham-O Manufacturing Co our Kiwi cousins also considered the issue at length in a decision about whether drawings, wooden models and moulds relating to various Frisbee models were sculptures. Keeping up? For the purposes of copyright law generally, the key principle is that sculpture is a branch of the visual arts concerned with the creation of three-dimensional forms, and copyright does not traditionally subsist in “functional objects” – in this case, while the wooden models were sculptures, the Frisbees produced were not, because they “lack[ed] any expressive form of the creator, and any idea which the creator seeks to convey.”
Luckily for Maurizio Cattelan, it seems quite certain that expressive ideas were to be conveyed by the artwork, as designboom reports:
composed of a real banana attached to the wall with just one piece of duct tape, comedian by maurizio cattelan for galerie perrotin at art basel miami beach 2019 showcases the artist’s characteristic commentaries — it’s a hyper-realistic sculpture satirizing popular culture and offering an ironic commentary on society, power, and authority. following the same line of america, an 18-karat gold toilet by cattelan, this piece offers insight into how we assign worth and what kind of objects we value (lower case in original).
So, while the Copyright Act does not require us to consider whether Mr Cattelan’s banana had any artistic worth, we can reasonably assume it conveyed enough originality within the meaning of the Copyright Act to fall within the definition of a sculpture.
No infringement: ripe for exploitation
Despite the look and peel of the case, there is no exclusive right to eat artworks (I can’t believe I’m writing this). Of course, there is the very legitimate issue that a man has eaten someone else’s banana – a tortious interference with goods, much like pinching grapes at the supermarket. For present purposes though, we are more interested in whether snacking on an artwork gives rise to any remedies in intellectual property.
Copyright in relation to an artistic work, under section 31(1)(b) of the Copyright Act, is the exclusive right to do all or any of the acts of: (1) reproducing the work in a material form; (2) publishing the work; and (3) communicating the work to the public (i.e. uploading or streaming onto the internet). Generally, infringement occurs where someone exercises these rights without authorisation in relation to a substantial part of the work.
Apart from the uploading of “Comedian” onto Instagram, the consumption of a substantial part of the artwork does not appear to be an exclusive right of Mr Cattalan – in terms of copyright law, anyone is free to eat his artwork. Are you thinking what I’m thinking, B1? I think I am, B2! Yes, a further branch of intellectual property law could theoretically offer relief: moral rights.
Moral rights were introduced into Australian law in 2001. These rights are personal and inalienable to the artist. They cannot be sold, but consent to their infringement can be given (as it often is in most commercial contexts). Moral rights consist of the following rights:
- The right of attribution: this provides that the creator of a work must be identified as such whenever a work is reproduced, published, performed or adapted (for literary, dramatic or musical works); reproduced, published, exhibited or communicated (for artistic works); or copied, exhibited or transmitted (for films).
- The right not to have authorship falsely attributed: this means that, in any reproduction or use of a work, there is a duty to the author of the work not to insert another person’s name in or on the work in such a way as to suggest falsely that the other person is the author. The right against false attribution also exists for performers.
- The right of integrity: this is a right to prevent derogatory treatment of a work that is detrimental to their honour or reputation. Derogatory treatment includes anything that results in material distortion, mutilation, or alteration of a work that is prejudicial to the author’s honour or reputation.
“There is no spoon!”: was the artwork mutilated or destroyed?
One might reasonably argue the artwork had been destroyed – however, the gallery owner made the slightly eccentric comment to the Miami Herald that:
[Datuna] did not destroy the art work. The banana is the idea.”
Right, moving on. So, was the banana artwork mutilated? Likely. Citing the Oxford English Dictionary, eminent commentators Laddie, Prescott and Vitoria state that “mutilation” is “the fact of rendering a thing imperfect by excision or destruction of one or more of its parts.” Similarly, but without an authoritative footnote upon which we might rely, Copinger and Skone James state that “[m]utilation of a work involves some form of cutting or destruction so as to render it imperfect.” Putting to one side the “the banana is the idea” noise, it’s clear from Mr Datuna’s recording of the act of consumption that there was indeed some material excision, cutting, and then destruction of the sculpture’s parts – and that’s before it entered the digestive system!
Mutilation aside, it should be observed that section 195AK(c) also includes that catch-all of: “the doing of anything else in relation to the work that is prejudicial to the author’s honour or reputation” – which presumably includes consumption.
This is where it all gets a bit mashed – the issue is rarely considered in Australia, and it is unclear in Australian law whether there is an objective assessment of whether the author’s honour or reputation has been prejudicially affected or whether it requires the artist’s bona fide opinion that they will suffer by the infringement. Conduct which results in distortion, mutilation, alteration or destruction does not necessarily amount to derogatory treatment. It is necessary to consider whether what has been done is prejudicial to the honour or reputation of the author and whether it is unreasonable in all the circumstances.
In the Canadian case of Snow v Eaton Centre Ltd the court indicated that, in the case of conflicting evidence on prejudice to the honour and reputation of the author, it would give considerable weight to the author’s views on the point, provided they were “reasonably arrived at”. The facts in that case offered limited guidance, where it was held that the attachment of ribbons as part of Christmas decorations to the necks of 60 geese forming part of a sculpture in a shopping centre was prejudicial to the honour and reputation of the artist. Naturally.
It is perhaps here we slip and fall – with limited Australian guidance, it’s not clear whether eating “Comedian” was ever prejudicial to the honour or reputation of the artist – in a case for damages, it would seem the opposite has occurred with all the fanfare and exposure – certainly, at IP Whiteboard we were not otherwise aware of a banana gaff-taped to a wall in a contemporary art gallery in Miami until this morning. As The Guardian reports above, “the work apparently comes with a certificate of authenticity, and owners can replace the banana … and the idea soon lived on, with a fresh banana affixed by Perrotin minutes later.”
Banana puns aside, moral rights are quite serious. While written agreements in relation to copyright materials often stipulate that consents are given to acts which might otherwise constitute moral rights infringement, the inclusion of these clauses (or written documentation of terms of licences at all) is not universal.
Because moral rights are personal they do not carry over with assignments of copyright – they remain with the author unless a consent has been given, or if the infringement can pass a reasonableness test. Businesses in the practice of commercialising or exploiting copyright materials can find themselves in a predicament where they have not obtained all consents to all the rights necessary to use the work in the manner contemplated – particularly for creative materials. And, because the law is largely untested and slippery, you can end up in a real banana split.
In conclusion, at IP Whiteboard, we would advise – as a rule – that our clients and readers should avoid eating artworks.
  EWHC 1878 (Ch). The English Court of Appeal dismissed an appeal, agreeing with Mann J on the “sculpture” question. On further appeal, the Supreme Court of the United Kingdom considered in the legislative history of the treatment of sculptural works in copyright law and also concluded that the helmet was not a sculpture, observing that “[i]t would not accord with the normal use of language to apply the term “sculpture” to a twentieth century military helmet used in the making of a film”.
  1 NZLR 641
 If you’re curious, the wooden models of the Frisbees were sculptures, the moulds or dies were engravings and the finished plastic moulded products were engravings but not sculptures.
 This terminology is confusing for the uninitiated. The Copyright Act 1968 says that “communicate‟ means to make material available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter, including a performance or live performance within the meaning of the Act. So, whenever copyright material is provided on the Internet, via an online database or by email, or broadcast using electronic transmission it is communicated to the public.
 See Copyright Act 1968 (Cth) ss 195AC – 195AH for an exhaustive list of the types of acts that would constitute false attribution according to the category of work.
 See Copyright Act 1968 (Cth) ss 195AI – 195AL.
 Authors may also consent to certain treatments of their work, and in some cases a defence may be raised that the act was reasonable in the circumstances – the factors for which are long, complex, and largely untested. We’d need more potassium before considering in detail.
 (1982) 70 CPR (2d) 105 (Ont)