Jacqui Palumbo, CNN

Nearly three years ago, Italian artist Maurizio Cattelan kickstarted one of the art world’s biggest viral moments when he sold a banana duct-taped to a wall for $120,000 at Art Basel Miami.

But Joe Morford, an artist from Glendale, California, is claiming that the world-renowned artist copied his own 2000 artwork titled “Banana & Orange.” Now, a federal judge in the Southern District of Florida has ruled that Morford can move forward with a case against Cattelan, stating Morford “sufficiently alleges that there is similarity in the (few) protected elements” of his artwork.

Should it reach court, the banana showdown will take place in Miami, where judge Robert N. Scola, Jr. denied Cattelan’s motion to dismiss the case last Wednesday.

“Thankfully for the Court, the question of whether a banana taped to a wall can be art is more a metaphysical question,” Scola wrote in his ruling. “But the legal question before the Court may be just as difficult — did Morford sufficiently allege that Cattelan’s banana infringes his banana?”

Morford is seeking damages over $390,000 — the total amount of Cattelan’s sales for three editions of the artworks — as well as court costs and travel expenses.

Cattelan drew international attention when he sold three near-identical versions of his banana artwork at the 2019 art fair, with the final piece fetching $150,000. Titled “Comedian,” the artwork became instantly recognizable as it was memed across the internet, and made headlines again after a performance artist ripped the fruit from the wall and ate it. That didn’t stop sales, however, as Cattelan wasn’t selling the original banana, rather a certificate of authenticity and instructions for installing the piece, including the exact angle and height to tape the piece of fruit. Since then, “Comedian” has entered the collection of the Guggenheim in New York, thanks to an anonymous donor.

Emmanuel Perrotin, founder of the Paris-based Perrotin art gallery, which represents Cattelan, told CNN after the artwork’s debut that bananas are “a symbol of global trade, a double entendre, as well as a classic device for humor.” He added that Cattelan turns mundane objects into “vehicles of both delight and critique.”

But Morford alleges “Comedian” plagiarizes his own artwork, “Banana & Orange,” made nearly two decades earlier. “Banana & Orange” features the titular fruits affixed with duct tape to painted green backgrounds on a wall.

“I did this in 2000. But some dude steals my junk and pimps it for 120K+ in 2019,” Morford wrote in a public Facebook post in 2019 with an image of the artwork. “Plagiarism much?”

According to court documents, Morford, who is representing himself, had registered the artwork with the US Copyright Office and posted the work on his website, Facebook and YouTube accounts long before Cattelan created “Comedian.”

Cattelan’s lawyers have argued that Morford has “no valid copyright,” to the elements of the artwork — the banana and the duct tape stuck against a wall — but the court determined that Morford “may be able to claim copyright in the expression of that idea” through the “selection, coordination, (and) arrangement” of the elements.

“While using silver duct tape to affix a banana to a wall may not espouse the highest degree of creativity, its absurd and farcical nature meets the ‘minimal degree of creativity’ needed to qualify as original,” writes Scola.

While allowing Morford’s case to proceed, Scola’s ruling did not weigh in on its merits at trial. If Morford cannot establish Cattelan had access to “Banana & Orange” in court, he will have to illustrate that the works are “strikingly similar,” according to court documents. Cattelan has argued that the earlier piece is “‘not sufficiently original’ to warrant protection.”

Cattelan’s lawyers and Morford did not immediately return CNN’s request for comment.

Top image caption: People post in front of Maurizio Cattelan’s “Comedian” presented by Perrotin Gallery and on view at Art Basel Miami 2019 at Miami Beach Convention Center on December 6, 2019 in Miami Beach, Florida.

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