September 19, 2020

Copyright Troll Lawsuit Over Duct Taped Banana Picture

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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