Copyright Law General Intellectual Property Trademark Law

Battle over a Banana as the Velvet Underground Sues over Iconic Album Cover

The record that launched 10,000 rock bands is at the heart of a new lawsuit filed Wednesday by legendary rock band the Velvet Underground.The band, which emerged from the late ’60s avant garde New York scene, released their debut album “The Velvet Underground and Nico” in 1967 (the greatest year in rock history, BTW). The band’s friend and patron Andy Warhol provided its iconic cover image, a screen print of a banana. But he never registered it with the US copyright Office.

Now his estate’s foundation has licensed the image’s use for iPad sleeves and iPhone covers and The Velvet Underground, led by Lou Reed are not having it. They filed suit in NY Federal court seeking to stop the foundation from profiting off the image in this fashion. The VU’s lawyers say that since Warhol never registered it, no one has copyright over it and the band has instead made the image its trademark.

The case shows the common intersection of two areas of intellectual property -copyright and trademark. Normally the artist who creates an artistic work automatically has copyright interest in the work even if he doesn’t register it. But the VU argue that Warhol didn’t design the banana, he acquired it straight out a of a magazine and that they paid him out of their $3,000 advance for the image. They therefore claim that no one has any copyright protection in the image.
They claim that since then, the image has been associated with the band as its trademark – a legal term for an item of intellectual property (a picture, slogan, logo etc) that identifies the source for a product. :Just Do IT” is no longer just an English phrase, its become synonymous with company Nike, given the company trademark protection over its use by anyone else. It would be hard to argue that this image is not directly associated with VU and that when you see it most people think of their album and their band.

This case will hinge on where the banana image came from; whether the Warhol Foundation can have attributed as his original work of art; whether VU can claim that since they paid him for it, he was doing it as a “work for hire” meaning that they own both the copyright and the trademark; and whether its worth enough money to fight over or whether the two sides can agree to a co-ownership deal that keeps it all within the family. I have to say its funny that Andy Warhol, who exploited others’ trademarks regularly to create pop art masterpieces would be sued over doing what made him famous by the band whose iconic image helped make them famous.

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