The “abstraction-filtration-comparison” test determines what “unprotected material should be disregarded when comparing two works” for substantial similarity in copyright infringement. Compulife Software Inc. v. Newman, 959 F.3d 1288, 1303 (11th Cir. 2020); Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1544 (11th Cir. 1996) (adopting the Second Circuit's abstraction-filtration-comparison test in the context of computer programming).

Under this three-step approach, the allegedly infringed work is deconstructed “into its constituent structural parts— that's abstraction.” Newman, 959 F.3d at 1303 (citations and quotation marks omitted). “Next, the court sifts out all non-protectible material—filtration.” Id. (cleaned up). And the “last step is to compare any remaining kernels of creative expression with the allegedly infringing [work] to determine if there is in fact a substantial similarity— comparison.” Id. (cleaned up).

Banana Taped to a Wall

The Southern District of Florida recently applied the abstraction-filtration-comparison test to artwork depicting a banana taped to a wall in Morford v Cattelan, No. 21-20039-Civ-Scola (S.D. Fla. Jun. 12, 2023).

Maurizio Cattelan created an absurdist display of a banana duct-taped to a wall at Art Basel Miami in 2019. In 2020, fellow artist Joe Morford sued Cattelan for copyright infringement, alleging that Cattelan's banana-on-the-wall (entitled “Comedian”) infringed Morford's own banana-on-a-wall work (named “Banana and Orange”).

On summary judgment, the Court determined that, at the filtration and comparison stages, the undisputed facts established that Comedian was too dissimilar to Banana and Orange for there to be copyright infringement.

Abstraction

The Court quoted Judge Learned Hand's articulation of abstraction:

Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the general statement of what the play is about, and at times consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which apart from their expression, his property is never extended.

Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).

Here, the Count there found the abstracted elements of Banana and Orange included the banana at a slight angle with the banana stalk on the left side pointing up and affixed to the wall panel “with a piece of silver duct tape running vertically at a slight angle, left to right.”

Filtration

Next, the Court applied the “merger doctrine” (where the expression is unprotectable because it has merged with the idea) as part of the filtration step, as guided by the Eleventh Circuit's decision in BUC Int'l Corp. v. Int'l Yacht Council Ltd., 489 F.3d 1129, 1143 (11th Cir. 2007) (“Since there are effectively only a few ways of visually presenting the idea that an activity is not permitted, copyright law would not protect the expression in this case, i.e., the circle with the line through it.”).

          The method chosen by both Morford and Cattelan—the “X” shape of the duct tape crossing the banana in a perpendicular manner—essentially merges with the concept of taping a banana to a wall. Id. It is, to put it bluntly, the obvious choice. Placing the tape parallel with the banana would cover it. Placing more than one piece of tape over the banana, at any angle, would necessarily obscure it. An artist seeking to tape a banana (or really, any oblong fruit or other household object) to a wall is therefore left with “only a few ways of visually presenting the idea”—all of which involve a piece of tape crossing the banana at some non-parallel angle. Id.

The Court, however, still found the following protectible elements of Morford's work: (1) the green rectangular panel on which the fruit is placed; (2) the use of masking tape to border the panels; (3) the orange on the top panel and banana on the bottom panel, both of which are centered; (4) the banana's placement “at a slight angle, with the banana stalk on the left side pointing up.”

Comparison

Finally, in the comparison step, the Court found that Banana and Orange and Comedian share only one common feature—“both bananas are situated with the banana's stalk on the left-hand side of sculpture”—which the Court held was “insignificant and insufficient to support a finding of legal copying.” The Court also held that the placement of the banana's stalk (on the right-hand side of the sculpture versus the left, or vice-versa) would be another element subject to the merger doctrine because there are only two ways the stalk may be placed, to the right or to the left. And “[t]he remaining features are simply too disparate to support a finding of substantial similarity.”

To avoid further limiting “the already finite number of ways in which a banana may be legally taped to a wall without infringing on Morford's work,” the Court found that Comedian and Banana and Orange are not substantially similar.

The attorneys at Thomas P. Howard, LLC litigate copyright cases nationwide including in Colorado.