MANHATTAN (CN) – Lou Reed and John Cale want to put the Andy Warhol-designed banana on the cover of their album “The Velvet Underground and Nico” in the public domain.
The Velvet Underground recorded the album in 1966, with the band splitting a royalty contract that had a $3,000 advance. Warhol agreed to design the front cover with a banana, a stylized signature, and a suggestive tagline “Peel slowly and see.”
The album, which did not sell well at first, eventually was named the 13th “Greatest Album of All Time” by Rolling Stone in 2003, according to the federal complaint.
The lawsuit follows an April 8, 2011 report in The New York Times that the Andy Warhol Foundation claimed ownership of the image in negotiations involving smart phones and accessories.
“[T]he Andy Warhol Foundation [has] agreed to lend [Warhol’s] work to a new series of iPhones 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 Times reported, according to the complaint. (Brackets as in complaint.)
Apple is not involved in this complaint, whose parties are The Velvet Underground, a partnership, but its general partners John Cale and Lou Reed v. The Andy Warhol Foundation for the Visual Arts, Inc.
The Velvet Underground says the Warhol Foundation lost any claim to the image by repeatedly publishing it without copyright protection.
“The Warhol Foundation has sought to justify its unlawful licensing activities involving the mark by asserting that it has a copyright interest in the banana design, despite the incontrovertible fact that the banana design, insofar as copyright rights are concerned, is in the public domain,” the complaint states. “The banana design was first published in 1967, and continuously and repeatedly afterwards, without any copyright notice, and neither Andy Warhol, the Warhol Foundation, nor anyone else, has applied for registration of any copyright or deposited any sample of the work with the Copyright Office. Under the applicable copyright law – which is the Copyright Act in effect from July 1, 1909 through December 31, 1977 (the ‘1909 Act’) – such publication without a copyright notice irrevocably placed the banana design in the public domain, if it was not there already.”
Though the band says the image legally belongs to the public, it says the album cover culturally belongs to them.
“[T]he banana design became a symbol, truly an icon, of The Velvet Underground. What had been the cover design for one album, ‘The Velvet Underground and Nico,’ became an element of multiple different CD and DVD recordings embodying music by The Velvet Underground, and, more broadly, a symbol of the group The Velvet Underground and its members even in non-musical contexts. For example, the banana design became a recurring visual theme in connection with a Velvet Underground reunion tour in Europe in 1993, and the cover design for the compact disc albums, the VHS tape and the DVD that resulted from that tour, used the banana design … [T]he 5 CD retrospective tribute album entitled [sic] ‘Peel Slowly And See’ that was released in 1995 also used the banana design, expressly noting in the booklet packaged with the CD that the design was a trademark of VU. In 2001, licensed by VU, Absolute vodka used the banana design in an ‘Absolut Underground’ national advertisement; the advertisement noted that the banana design is a trademark of VU,” the complaint states. (Brackets added.)
The Velvet Underground seeks exemplary and treble damages for false designation of origin, unfair competition and misappropriation. It also wants a declaratory judgment that the cover belongs in the public domain.
The band is represented by Christopher R. Whent.