The Velvet Underground sues the Andy Warhol Foundation for infringing use of the “public domain” banana design that Andy Warhol made for them in 1967.
via abelson:
The Velvet Underground sued the Andy Warhol Foundation, accusing it of infringing the trademark for the banana design on the cover of the rock group’s first album in 1967.
The band’s founders, Lou Reed and John Cale, said that the foundation infringed the design by licensing it to third parties, according to the complaint filed today in federal court in Manhattan.
The band, which was active from about 1965 to 1972, formed an artistic collaboration with Warhol, who designed the banana illustration for “The Velvet Underground and Nico,” which critics have labeled one of the most influential rock recordings of all time, according to the complaint.
The Warhol Foundation claimed it has a copyright interest in the design, according to the lawsuit. The Velvet Underground partnership said in the complaint that the design can’t be copyrighted because it’s in the public domain. The banana image Warhol furnished for the illustration came from an advertisement that was in the public domain, according to the complaint.
The illustration appeared on the album cover without a copyright notice and no one sought to copyright it, according to the complaint. That put the design in the public domain, the group said in the lawsuit.
“The banana design is a significant element of Velvet Underground’s ongoing licensed merchandising activity,” the group said. Use of the design as a trademark by the band “has been exclusive, continuous and uninterrupted for more than 25 years.”
Wow. Either the article mashes all the legal concepts or the complaint does. The image was not properly protected under copyright law so it is public domain, but then appropriated by the VU as an exclusive trademark. It doesn’t seem like they’ve done a good job policing the mark …
Can’t wait to see what Techdirt has to say about this one.
-Jay
(via tedr)
