Who owns the rights to the Andy Warhol banana on the cover of the the Velvet Underground’s 1967 album The Velvet Underground & Nico? That is the subject of a lawsuit filed by the rock band against The Andy Warhol Foundation for the Visual Arts earlier this year.
Back in 2009, the Foundation accused the band of copyright infringement for its use of the image. The band responded that the image was a band trademark and filed a new suit in January 2012 when the Foundation licensed of some of Warhol’s works, including the famous banana artwork, to Incase for iPhone covers.
Recently U.S. District Court Judge Alison Nathan dismissed the copyright claim but ruled that the trademark claims in the lawsuit may continue.
In its lawsuit, the band at first maintained that the banana was in the public domain, but then amended the complaint to allege that the Foundation didn’t own the copyright; when the Foundation gave the band a “covenant not to sue for copyright infringement,” the Foundation filed a motion to dismiss that part of the lawsuit.
Judge Nathan agreed that the covenant effectively ended any controversy over the copyright and dismissed the claim; a federal court must have a live controversy before it in order to rule on the issue.
The trademark claims in the case survived, however, and unless a settlement is reached, will eventually be ruled upon.
The band maintains that because the banana cover has become so closely linked 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 argument goes that this could create confusion that products featuring the banana art are somehow associated with or endorsed by the band.
The case has an especially interesting background since Warhol was actually the band’s manager and is listed as the producer of the album in question.
What do you think of the Warhol banana art? Should the Warhol Foundation be able to license it or is it so linked with the Velvet Underground that it would cause confusion among consumers as to the source of the goods on which it appears?