Building copyright: an absurdist work in progress

Would you say that a(n actual) banana duct-taped to a wall may be protected by copyright? And would you consider a claim that the author of said duct-taped banana copied the work of another artist who had also duct-taped a (plastic) banana to a green cardboard an infringement of the copyright owned by said artist?

These questions are those that, recently, a court in the USA had to answer in the context of litigation that artist Joe Morford had brought against fellow artist Maurizio Cattelan. Morford claimed that Cattelan’s work titled Comedian infringed copyright in the former’s work Banana and Orange. In the end, the judge sided with Cattelan: while Morford’s Banana and Orange would enjoy some copyright protection, Comedian does not incorporate any protectable features of that work.

Not only is the Morford/Cattelan dispute nearly as “absurdist” as Cattelan’s Comedian (as stated by Cattelan himself) is meant to be but it does also illustrate the inherent ambiguity of copyright’s founding principles.

We know that copyright is an intellectual property (IP) right that protects works that are created by an author and are sufficiently original. Yet, nowhere in legislation is it defined what the very object of protection (a “work”) is, who is or what makes one an “author” in a legal sense, or what the concept of originality refers to.

Starting with “work,” international law merely describes what the expression “literary and artistic works” encompasses and hints at the fact that copyright only protects expressions of ideas and not ideas as such (the so called idea/expression dichotomy) when it refers to this notion as requiring a “production.” Like US law, EU and UK law are no more helpful in this regard: no definition is provided of “work.” 

Something more is said in relation to “originality” and “authorship,” at least in EU legislation, though hardly anyone could consider such hints as being akin to a definition. So, originality under EU law (the same is still true for the UK too, as well as the USA) is considered fulfilled where the work at issue is “its author’s own intellectual creation.” 

For authorship, nothing is specified regarding its foundational requirements, that is: what makes one an author. The only hints we may find relate to who may be regarded an author. For example, the Compendium of Practices of the US Copyright Office excludes that “works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author” may be protected by copyright. Recently, for example, the US Copyright Office refused to register a work that was said to be entirely generated by Artificial Intelligence (AI); the decision has been however appealed and the appeal is pending). The situation is different under UK law, where the Copyright, Designs and Patents Act expressly provides that, for a work that is entirely computer-generated, the person who made the necessary arrangements is deemed to be the author. Insofar as the EU is concerned, it is not entirely clear if an “author” in a legal sense needs to be a natural person, though case law suggests indirectly that in most cases this likely needs to be the case to receive protection under copyright.

Indeed, while we may look in vain for statutory definitions of foundational principles of copyright protection, a lot of what copyright is and protects today stems from case law guidance developed over time. 

If we consider the EU alone, the Court of Justice of the European Union (CJEU) has expressly provided definitions of key concepts like “work” and “originality.” The former has been defined in a case concerning the protectability of the taste of a spreadable cheese under copyright: a “work” is an expression that is “identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.” Turning to originality, what is needed is that the intellectual creation at hand reflects “the author’s personality, which is the case if the author was able to express [their] creative abilities in the production of the work by making free and creative choices.”

In all this, two things are clear. The first is that this process of refinement is still underway, also considering the challenges that generative AI has been posing. The second is that it is precisely this fuzziness that has allowed a right like copyright, which regulates (and should stimulate) the production and dissemination of cultural objects and also serves as an instrument of technological governance, to maintain a central role. Without it, a system originally devised to regulate the circulation of printed books in the aftermath of Gutenberg’s revolutionary invention would have hardly survived, let alone thrived several centuries later. 

So, yes, Cattelan’s “absurdist display of a banana duct-taped to a wall” showcases not only why copyright is—in all likelihood—the most delightful of all the IP rights but also how its own inherent absurdities are needed for its very livelihood… and liveliness.

_{Featured image: Matthew Feeney via Unsplash, public domain}