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Miami, FL Law Blog for Entertainment Law, Business Law, and Public Interest

Wednesday, September 26, 2012

That's bananas: Velvet Underground, Warhol Foundation fight over copyright

By Pankaj Ladhar of Manos • Alwine P.L.

For many people, Andy Warhol is synonymous with Pop Art. His brightly colored and deliberately blurred images of Marilyn Monroe, Elvis Presley and Campbell's soup cans are nothing short of iconic. But who owns the rights to his famous image of a banana?

You might think the answer would be obvious -- he does -- but the plot thickens.

The band The Velvet Underground commissioned Warhol to do the cover art for its 1967 debut album. The album and its cover art, a brown-spotted yellow banana on a plain cream background, became famous.

Now, The Velvet Underground has sued The Andy Warhol Foundation for Visual Arts, alleging it violated a copyright held by the band when it licensed the banana image for use on iPad and iPhone cases and sleeves. It also claimed the foundation was violating the band's trademark because the banana image is accepted as symbol for the band.
Recently, a judge threw out the copyright portion of the lawsuit. It seems that the band's dealings with Warhol back in the 1960s were too murky and indistinct to permit The Velvet Underground to assert ownership of the copyright to the banana image.

However, the trademark portion of the case will be allowed to go forward.

The lesson to be learned here is twofold.

First, it pays to make sure all your Ts are crossed and Is are dotted when dealing with intellectual property assets. You don't want problems to arise later.

Second, it makes good business sense to see everything as a potential asset. It seems fair to assume that neither Warhol nor The Velvet Underground thought the banana image would become so famous. But if they had realized its potential, either party might have acted with greater care to firm up its claim to the image earlier on and thus benefitted from its ownership years later, when it became very valuable.

Source: The New York Times ArtsBeat, "Portion of Suit Over Warhol's Velvet Underground Banana Is Discarded," Dave Itzkoff, Sept. 11, 2012


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