On April 7, the U.S. Supreme Court took a few minutes off from its hobby of enabling a former game-show host armed with nuclear weapons to deny Joe Morford’s petition for certiorari. That’s too bad, because it means there will be no oral argument in which the justices discuss things like the angle at which a banana has been taped to a wall.

As you may recall, Italian artist Maurizio Cattelan created a piece for a Miami art fair in 2019 that consisted of a real banana duct-taped to a blank wall. Entitled “Comedian,” the work was accompanied by “a certificate of authenticity with detailed diagrams and instructions for its proper display.” According to the report, the work was intended to convey a sense of “absurdity.” It did that, although arguably it wasn’t the work itself so much as the fact that somebody paid $120,000 for it.

In fact, two people paid $120,000 for it—Cattelan created a “limited edition” of three—and then somebody paid $150,000 for the third. That’s $390,000 for three bananas (for which he paid 25 cents each) and three pieces of duct tape.

I’m not blaming Cattelan in any way for this. The more I read about Cattelan’s work, the more I like him. Because it is completely ridiculous:

• In 1992, he started the Oblomov Foundation, which offered grants to artists who would promise not to create or show any art for a year. (Oblomov is a Russian novel in which the title character never does anything useful. “In the first 50 pages,” Wikipedia notes, “he only manages to move from his bed to a chair.”)

• One of Cattelan’s “best-known sculptures,” La Nona Ora (1999), is a wax figure of Pope John Paul II being hit by a meteor.

• Cattelan “previously used duct tape suspension” for A Perfect Day (also 1999), in which he duct-taped a local art dealer to a gallery wall.

• L.O.V.E. (2011) is an 11-meter-high sculpture of a middle finger aimed at the Milan stock market.

• Then there was 2016’s America, a fully functioning toilet made out of solid gold. This was originally installed in one of the Guggenheim’s regular bathrooms, where an estimated 100,000 people used it. It was later stolen while on loan to a UK museum. The thieves were found and convicted, but they are thought to have melted America down and sold it.

Again, Cattelan created three examples of Comedian in 2019 and sold all three. But it’d be more accurate to say he sold the right to re-create Comedian, because after all, something made with a real banana won’t last forever. In fact, the original didn’t even last through the 2019 art show. Another artist took the banana out of the artwork and ate it, describing this act as a piece of performance art he called Hungry Artist. He wasn’t prosecuted, probably because it’s hard to say whether he did any damage. (They just replaced the banana.) Another instance of Comedian, or maybe the same one, who knows, was similarly eaten in April 2023.

And in November 2024, at a time when national insanity was on the rise generally, a “Trump-linked” crypto bro bought an instance of Comedian for $6.2 million, apparently in real money. He then ate the banana onstage, saying that, like many crypto assets, “the real value is the concept itself.” And, also like many crypto assets, in a matter of hours it had turned into worthless poop.

That brings us to Joe Morford, an artist who sued Cattelan in 2020 for copyright infringement. In 2001, Morford created the work Banana and Orange, which consists of one example of each fruit taped to a wall. When Cattelan duct-taped his banana to a wall, Morford alleged, he had unfairly copied Morford’s work. Last June, Judge Robert Scola, Jr., granted summary judgment for Cattelan. “[T]he Court must resolve here,” he wrote, “whether it can find that one artist’s banana duct-taped to a wall is, in fact, an infringement upon another’s, or whether such an issue must be decided by a jury.” He ended up sparing the potential jurors.

Here’s the law (summarized from the opinion). Winning a copyright-infringement claim requires proving (1) ownership of a valid copyright and (2) “copying of constitutent elements of the work that are original.” The court assumed #1 for the sake of argument. To prove copying, a plaintiff has to show the defendant “actually used” the copyrighted work and that the copied elements are “protected expression.” Actual use can be proven indirectly, by proving the defendant had access to the copyrighted work and that there are “probative similarities.” But, importantly here, copyright protects only “the particular expression of an idea,” not the idea itself.

Cattelan did not dispute that the two works had “probative similarities,” and “[g]iven that both works are bananas duct-taped to walls, the Court sees no need to belabor this point.” But it didn’t matter. Morford had no direct evidence of actual use, and his only evidence that Cattelan “had access” to Banana and Orange was that a few pictures of it are on the internet. But courts have held “mere presence on the internet” isn’t enough, so that alone showed Morford couldn’t prove his claim. (Cattelan swore he’d never seen it.)

The court went on, though, to find that although there were obvious “similarities,” the works weren’t similar enough. That analysis is too complicated to lay out here, but is worth reading precisely because it is a complicated analysis of two pieces of fruit duct-taped to a wall. Morford’s basic problems were these: (1) he “cannot claim a copyright in the idea of affixing a banana to a vertical plane using duct tape,” and (2) he “cannot claim a copyright in bananas or duct tape.” There were potentially protectible elements, most importantly “the banana’s placement at a slight angle, with the banana stalk on the left side pointing up.” But this was not enough. There are only two sides (left or right) for the stalk to be on, the court pointed out, and “only so many angles at which a banana can be placed on a wall….” To say this made a difference would essentially mean that one could “copyright the idea of duct-taping a banana to a wall,” a step the court was unwilling to take.

In 2024, the Eleventh Circuit affirmed. Morford, of course, petitioned the U.S. Supreme Court for review. He represented himself on appeal, and either he had some help or he is a pretty good lawyer (for a conceptual artist). The petition is less formal than one might expect from a professional lawyer (“Yeah, it’s just a stupid banana taped to a wall,” he conceded), but that’s not necessarily a bad thing.

Sadly, as noted the Court denied his petition earlier this week. Does it have better things to do right now? Unfortunately, yes.