Do the Velvet Underground and the Warhol Foundation fight for Warhol's banana?

Warhol's cover of the album "The Velvet Underground & Nico"

The Velvet Underground, the legendary New York band, filed two days ago a lawsuit against the Andy Warhol Foundation for the Visual Arts Inc., in New York federal Court, for violating its trademark representing a banana designed by the pop art artist Andy Warhol.

The band worked closely with Warhol in the 60’s and the king of the pop art designed the banana illustration appearing on the cover of their first 1967 commercially released album “The Velvet Underground and Nico ”.

The band founders, Lou Reed and John Cale, claimed that the Foundation infringed the design, by licensing its usage to Incase, which makes sleeves, bags and cases for Apple products. In April 2011, this company announced it had worked with the Andy Warhol Foundation to create a “distinctive collection” of products that carried the artist’s works. Among these works, there is also the Velvet Underground’s album cover design.

Within the complaint, which does not mention Apple, the Velvet Underground claimed that the design could not be copyrighted because Andy Warhol took the banana’s image from an advertisement that was on the public domain.

In addition, the banana design would have become the Velvet Underground’s trademark, though theVelvet Underground did not ever trademark it, since the band would have obtained this right thanks to the exclusive, continuous and uninterrupted association to the band for more than 25 years, so to represent the band’s icon and an important element of its current licensed merchandising products.

The Velvet Underground asked the judge to prevent Incase from selling and creating other products reproducing the banana design. In addition, the band requested monetary damages, besides a judicial declaration that the Foundation holds no copyright to the banana illustration.

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