The Velvet Underground surfaces to fight for Andy Warhol's banana

Andy Warhol and The Velvet Underground have been tight since 1965.

The band, founded by Lou Reed and John Cale, have been inextricably linked to Warhol since they formed an artistic collaboration in 1965. A couple of years later Warhol who designed the banana illustration for their legendary “The Velvet Underground and Nico”  album. The group would perform at Warhol's New York studio, the Factory, and in his traveling light show, the Exploding Plastic Inevitable.

But now, the band members are suing The Andy Warhol Foundation, accusing it in a federal lawsuit of infringing the trademark for the banana design. The foundation has been licensing the banana to third parties such as a company who makes covers for the Apple iPad and iPhone.

The Warhol Foundation claims it has a copyright interest in the design, as it was created by Warhol. The band says that the design can’t be copyrighted because it’s in the public domain, as the banana image Warhol furnished for the illustration came from an advertisement that was in the public domain.

The situation is messy in that the banana appeared on the album cover without a copyright notice and over the years no one sought to copyright it.

“The banana design is a significant element of Velvet Underground’s ongoing licensed merchandising activity,” the group said. Use of the design as a trademark by the band “has been exclusive, continuous and uninterrupted for more than 25 years.” Because the image is so closely associated with the band, the Velvet Underground claims in the suit that the foundation is trying to “decieve the public” into thinking the band gives their approval to products that carry the image.

The case is The Velvet Underground v. The Andy Warhol Foundation for the Visual Arts, 12-0201, U.S. District Court, Southern District of New York (Manhattan).

Sources: Businessweek, Washington Post and WSJ.com

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