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The Velvet Underground has filed a lawsuit in New York federal court against The Andy Warhol Foundation for the Visual Arts over new uses of an iconic cover from the band’s 1967 album, The Velvet Underground & Nico. The Andy Warhol-created banana image is instantly recognizable, and now the two parties are fighting over who gets to control it.
A copyright on the banana design was never formally registered, but band members including Lou Reed and John Cale maintain it “became a symbol, truly an icon, of the Velvet Underground” for decades.
After reading reports that the Warhol Foundation planned to license the design for ancillary products associated with Apple’s iPod and iPad, the band made moves to put a stop to such activity.
The lawsuit says that the Velvet Underground urged the Warhol Foundation to cease licensing activities “likely to cause confusion or mistake as to the association of Velvet Underground with the goods sold in commerce by such third parties.”
Warhol has been credited as the “producer” of the album who came up with the idea for having an image of a banana on the cover. The original version was a sticker that could be peeled back; it’s now a collector’s item.
Stories about how the idea came about vary. In one version, a French singer named Antoine came to New York and was greeted by Nico holding a bunch of bananas. Warhol would later photograph the singer. In another version — the one given in the complaint — Warhol designed the image after the group shared a $3,000 advance.
Whether Warhol held onto the design as his own intellectual property or put it in the public domain for repeatedly publishing it without a copyright notice could be tested in the coming case.
In its lawsuit, the Velvet Underground, which broke up in 1973, asserts that the design, often hailed as one of the most famous pieces of cover art of all-time, is most associated with the band’s music.
According to the complaint, “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.”
The band is suing for false designation of origin, unfair competition and misappropriation. The band is asking for damages on its trademark-based claims and also seeking a declaratory judgement that the image is in the public domain.
Interestingly, the back cover of the album was once the subject of legal controvery too. Originally, an upside-down image of actor Eric Emerson was scheduled to adorn the back before he complained about compensation.
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