The Velvet Underground is suing the Andy Warhol Foundation for licensing Warhol’s iconic banana design featured on the group’s 1967 debut album, The Velvet Underground & Nico, according to a complaint filed with the Southern District Court of New York.
The Warhol Foundation claims it has a copyright interest in the image, but according to the complaint, Warhol’s banana is in the public domain. The complaint states that neither the Warhol Foundation, “nor anyone else,” has applied for registration of any copyright.
The case was prompted in part by an article in The New York Times from April 2011 that is quoted in the complaint:
“[T]he Andy Warhol Foundation [has] agreed to lend [Warhol's] work to a new series of iPhone and iPad cases, sleeves and bags from Incase. For the first in a series of four, they chose to focus on the iconic 1966 banana that Warhol created for the Velvet Underground’s self-titled album…”
The Velvet Underground began collaborating with Warhol after the artist saw one of their performances in 1965. The band played regularly at Warhol’s studio, the Factory, and were the centerpiece of The Exploding Plastic Inevitable, the artist’s series of multimedia events staged between 1966 and 1967. Andy Warhol is credited with producing the group’s debut (which is also referred to as “The Banana Album”), though there is some question as to his involvement in the music’s production. The album sold poorly, as did their subsequent albums, and the group disbanded largely in obscurity. (The court documents define The Velvet Underground as a “Partnership” of John Cale and Lou Reed.)
The complaint claims that the banana design “became a symbol, truly an icon, of The Velvet Underground” as their reputation and following began to grow after their official break-up in 1972. The symbol was featured prominently in the band’s reunion tour of Europe in 1993 and served as the cover image for the band’s career retrospective box set, Peel Slowly and See (that phrase is featured on the cover of The Velvet Underground & Nico; on original vinyl editions of the album, the banana was a sticker that could be removed to reveal an image of the peeled fruit underneath).
“[T]he symbol has become so identified with The Velvet Underground and its members as a group…that members of the public, and particularly those who listen to rock music, immediately recognize the Banana design as the symbol of The Velvet Underground.”
The Warhol Foundation has asserted that The Velvet Underground “has no trademark rights” in the banana design.