Warhol Foundation Sued by Velvet Underground Over Banana Design

The Andy Warhol Foundation was accused in a lawsuit by The Velvet Underground 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 yesterday 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.”

Pop Art

Warhol, one of the most celebrated Pop artists, began his collaboration with the band in 1965. The group performed at his New York studio, the Factory, and in his traveling light show, the Exploding Plastic Inevitable. Warhol died in 1987.

Nina Djerejian, a spokeswoman for the New York-based foundation, didn’t return messages yesterday seeking comment on the lawsuit.

Warhol’s copyrighted works have a market value of $120 million and the foundation has earned more than $2.5 million a year licensing rights to those works, according to the complaint.

The Velvet Underground is seeking a judicial declaration that the foundation has no copyright to the banana design, an injunction barring the use of any merchandise using the artwork and monetary damages. The group is requesting a jury trial.

In the so-called Banana Album, the Velvets chronicled the 1960s hard-drug scene in songs written by Reed such as “Heroin” and “I’m Waiting for the Man.” Released by MGM Records, the album was a commercial failure, according to the complaint. The catalog of MGM became part of Vivendi SA’s Universal Music Group, which has re-released the album.

The case is The Velvet Underground v. The Andy Warhol Foundation for the Visual Arts, 12-0201, U.S. District Court, Southern District of New York (Manhattan).