Representatives of the defunct rock band, The Velvet Underground, have brought an action against the Andy Warhol Foundation for the Visual Arts Inc. concerning rights over the world’s most iconic banana image a full 45 years after it was first released.

The image in question was first published on the cover of the Velvet Underground’s 1967 debut album, “The Velvet Underground and Nico.”  It depicts a banana accompanied by Warhol’s signature executed in the late pop artist’s distinctive silkscreen style.  The band and Warhol collaborated on many occasions in the late 1960s.  Warhol acted as manager to The Velvet Underground while the group was the house band at Warhol’s well-known Manhattan studio, the Factory.  It was even Warhol who suggested that the band collaborate with Nico who, in addition to lending her name to the title, sings on several of the album’s tracks.  Due to the close relationship of the parties, the creation and distribution of the album artwork was a seemingly collaborative effort.  It has been reported that The Velvet Underground even shared a portion of the album’s $3000 royalty advance with Warhol in exchange for providing them with the image.

The present legal troubles began when former members of the band learned that the Warhol Foundation had licensed the image to Apple to be printed on cases and sleeves for IPhones and IPads.  A partnership of former Velvet Underground members, Lou Reed and John Cale, allege that they own a trademark in the image based on its strong association with the band.  In the suit they explain that licensing the image to Apple will deceive consumers into believing that the band allowed for the sponsorship and approval of Apple products.  They support their claim to a trademark by stating that they have maintained exclusive and uninterrupted use of the image for over 25 years which included re-using the image on a 1995 box-set of their work and even licensing it to Absolut Vodka in 2001.  Both the past use and licensing of the image were met without objection from the Warhol Foundation.

The current state of legal limbo is based on the strong associations to both artists evoked by the image.  The original work is an unmistakeable Warhol with no definitive evidence of any sale to the band.  Moreover, no copyright was ever registered.  The eventual critical and commercial success of “The Velvet Underground and Nico” has led to the iconic image subsequently being closely associated to the band leading many to call it the “Banana Album.” In the suit the partners explain that, “The banana design became a symbol, truly an icon, of The Velvet Underground.”  There has been no definitive response from the Warhol Foundation to the allegations.

The Velvet Underground is seeking an injunction preventing the use of the banana image by others, a declaration that the Warhol Foundation has no copyright in the work, their share of any profits already made from the Apple licensing, and further unspecified damages. The onus will be on the band to uphold their trademark claim which is strengthened by a long history of use despite the fact that Andy’s very own signature adorns the work.

Andrew Baker is a LLB/BCL candidate at McGill University Faculty of Law.