A Federal Court Will Decide Who Owns This Banana

velvet underground

The most mind-boggling fact inside the lawsuit that The Velvet Underground has filed against The Warhol Foundation is that in the 45 years since “The Velvet Underground & Nico” was released neither the band nor Andy Warhol, who designed the LP cover, bothered to trademark or copyright the banana design.

According to the suit, Warhol supplied the famous artwork in return for a split of the $3,000 advance that MGM paid the band to record the album.

In the intervening years, no one bothered to formally file intellectual property rights to the image, John Cale, Lou Reed and the rest of the band allege in a suit filed in a New York federal court.

The Velvets admit in their court papers that they do not own the banana. They say that the image has long since passed into the “public domain” — meaning anyone can reproduce it — but that because the Velvets have been using it on merchandise and retrospectives, in addition to continuing to sell the original record, that the banana has acquired a “secondary meaning as a mark of the VU.”

Enter the iPhone: The Warhol Foundation, which controls licensing rights to Warhol’s work, recently decided to sell a line of iPhone and iPad cases with the banana on. The Velvets allege:

warhol banana

“The Warhol Foundation has sought to justify its unlawful licensing activities involving the Mark by asserting that it has a copyright interest in the Banana design, despite the incontrovertible fact that the Banana design, insofar as copyright rights are concerned, is in the public domain.”

The foundation has admitted it doesn’t outright own the banana, according to the Velvets’ suit. In pre-litigation correspondence, the foundation asserted that it “may have a copyright interest in the Banana design.” (The original design as supplied by Warhol is pictured at right.)

That’s a long way from actually owning it.

The foundation has yet to file a response.