When Andy Warhol produced the Velvet Underground & Nico in 1967 he also created the now famous banana graphic specifically to grace the front cover. And since then, although they disbanded in1972, Lou Reed and John Cale have, they say, continuously used that banana in marketing and promotion for all kinds of VU endorsed goodies, including vodka, as well as to promote their 1989 re-union tour and record, Songs for Drella(their tribute to Warhol).
That’s all it takes to make a trademark, if they can prove it, so the Velvet Underground has filed a suit against The Andy Warhol Foundation for the Arts (AWF) accusing them of using the image and licensing it to third parties (like Apple) “in a manner likely to cause confusion or mistake as to the association of Velvet Underground with the goods sold in commerce by such third parties.”
“The symbol has become so identified with The Velvet Underground … that members of the public, particularly those who listen to rock music, immediately recognize the banana design as the symbol of The Velvet Underground.”
Pop-culture savvy social media consultant Nichelle Stephens begs to differ:
“There are two whole generations that would disagree. Gen Ys and Millennials don’t even think about album art anymore. They’d just think it’s a Warhol.”
When Warhol appropriated the fruit from an advertisement in order to make album cover art history, copyright laws were different. An unregistered copyright would result in a loss of copyright.
So, since Warhol never did register the logo, he did not hold intellectual property rights to it.
And since the AWF never registered the banana either, they also do not own it.
In fact, the Velvet Underground are arguing that it’s nobody’s damned banana. What is more, because AWF have published the image many times without any official right to it, Reed/Cale claim that the coveted fruit is actually in the public domain.
Perhaps complicating matters still more, Warhol was paid for the design by the record label, which can mean that the banana was actually a work for hire. In that case, the copyright would have belonged to the Velvet Underground’s label. But they never registered it either.
Suggesting that, with so many graphics to choose from, AWF can only be using the banana to capitalize on its association with The Velvet Underground, the band is seeking an injunction against the AWF, to force them to cease licensing it and demanding “unspecified damages” and a share of the profits made by the AWF from any past or ongoing licensing deals.
The suit also demands a declaration that the Warhol Foundation has no copyright interest in the banana.