Velvet Underground vs. Warhol: Band goes to battle over a banana
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This banana screen print, created by Andy Warhol in 1966, was used on The Velvet Underground's self-titled debut album. Now it's on an iPhone case.
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One of the world's legendary rock bands and premier art foundations are about to do battle -- over a banana.
The Velvet Underground filed a trademark infringement lawsuit Wednesday in U.S. District Court in Manhattan against The Andy Warhol Foundation, claiming it illegally licensed the famous banana image from the band's 1967 debut album for use on iPhone and iPad cases.
"The symbol has become so identified with the Velvet Underground," the suit argues, "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 lawsuit states that the band asked the foundation repeatedly to cease use of the image on iPad and iPhone accessories and that the foundation was trying to "deceive the public" into believing the band had given its "sponsorship or approval."
The Velvet Underground's early days are inextricably linked with Warhol and the scene at his famed New York studio, The Factory. Warhol, who grew up in Pittsburgh and moved to New York in 1949, began his association with the Velvets in 1965, when the band started performing at The Factory and contributing to his movie soundtracks.
In early 1966, he announced he was "sponsoring" the band, led by Lou Reed and John Cale. For its debut album, the suit states, Warhol used an element -- the banana -- from a public domain advertisement. According to the suit, in May 1966, the band received an advance of $3,000, which it "split with Andy Warhol in part in consideration for his furnishing the illustration for the record cover."
The banana was never officially copyrighted, and it appeared on the original album cover with just a Warhol signature and the words "Peel Slowly And See," revealing underneath an image of a banana's flesh-colored fruit. It wasn't until a later reissue that the band name was added to the cover. The band claims that while the image is in the popular domain, it is a symbol and trademark of the band, used not only on that first cover but on a future compilation and during the band's European tour in 1993.
It adds, "In 2001, licensed by VU, Absolut vodka used the banana design in an 'Absolut Underground' national advertisement; the advertisement noted that the banana design is a trademark of VU."
The New York-based Warhol Foundation declined to comment on the suit, as did representatives of Pittsburgh's Andy Warhol Museum, which was founded in part with contributions from the foundation and is still supported by it.
Tom Sokolowski, former director of the Warhol Museum, said there's no question of the banana's association with the Velvet Underground. "I can't think of any other time he used bananas."
Mr. Sokolowski said it was common for Warhol not to copyright his "work for hire" images.
"These were young guys in New York -- excited -- no one was thinking about these things. The Factory was full of drag queens and drug addicts. It wasn't big money at the time. It wasn't until after he got shot that it became an enterprise, that people with legal knowledge started working for him."
Not only that, he said, Warhol's relationship with the Velvets was very "loosey-goosey."
Andy Cornelius, an intellectual property attorney in Mt. Lebanon, said the case raises a number of interesting issues.
"The Velvet Underground claims common law rights to the image, but can they prove that they used the banana logo as a trademark? Has use of the mark been consistent over the years? Also, initially, they used the banana logo with Warhol's blessing. Even if the Warhol [Foundation] owns a copyright in the image now, I'm not sure they are going to be able to assert the copyright successfully against [VU]. You can't let someone do something for years and then decide you don't want them to do it anymore."
Always a sticky issue in trademark litigation is proving the "likelihood of confusion" requirement. In this instance, does the public associate the image with the Velvet Underground or with Andy Warhol?
"I can't say who is going to win this case," Mr. Cornelius said, "but the [VU] attorney is saying the right things. Whether they can prove it is something else."
Michael Madison, University of Pittsburgh law professor, said, "Suppose VU is right and the image really is in the public domain for copyright purposes. If that's true, then anybody can sell copies of it. That's what 'public domain' means."
As far as VU having a trademark for the image, he said, the band would have an easier time preventing another band from using the banana than convincing a judge that an iPad cover manufacturer could not use it.
The album, featuring such dark drug and sex anthems as "I'm Waiting for the Man," "Heroin" and "Venus in Furs," was a blueprint for the glam and punk movements to follow, but it was a commercial failure, upon its release, peaking at No. 171 on the Billboard charts. While it influenced bands then and still does, the critical acclaim didn't come till later. In 2003, Rolling Stone placed it No. 13 on "The 500 Greatest Albums of All Time," calling it "the most prophetic rock album ever made."
After the album's disappointing sales, the band cut ties with Warhol and guest German singer/model Nico. After recording five albums, the band folded in 1972, spinning Mr. Reed and co-principal John Cale off to successful solo careers. VU reunited in 1990, and its last performance was at its Rock and Roll Hall of Fame induction in 1996. It remains a band in the business sense only.
First Published January 13, 2012 12:00 am
