Legal Bananas: The Velvet Underground sues Andy Warhol over THAT album cover.
Above Photo: Warhol, Nico and some of the Velvet Underground in a 1960s Photo Shoot.
Continuing my Bombed Out!-related theme of bands mentioned in the book and their legal woes, I thought this was an interesting story about a band that seriously influenced my music tastes as I grew up.
The Velvet Underground & Nico was the Velvet Underground’s debut album, on which Nico also collaborated. Originally released in March 1967, but recorded in 1966 during Andy Warhol’s Exploding Plastic Inevitable multimedia art tour, the iconic album cover was created by the band’s mentor, Andy Warhol.
The original album cover allowed buyers to peel back the banana skin as a sticker, revealing the fruit of a banana underneath. The sexual ambiguity of this was obvious. Although the record wasn’t really a commercial success when it was released, it is now rightly revered.
Unfortunately, nearly 50 years after the album first came out, the band (suing in the names of Lou Reed and John Cale) and the Andy Warhol Foundation would end up in court over ownership of trademarks and who had the right to market the banana image as their own work.
It’s inevitable but interesting that iPad downloads, iPhones and other new media never imagined by bands back then have caused so much legal trouble and royalties disputes in the modern day. And so it was in this case, as the band accused the Warhol Foundation of illegally licensing their banana album cover for use on iPhone and iPad products and accessories.
The band argued the Velvet Underground’s use of the artwork “has been exclusive, continuous, and uninterrupted for more than 25 years.” They also contended Warhol had originally based his design on an advertisement, so Warhol couldn’t possibly have owned any copyright in it.
Ignoring the copyright issue, the Warhol Foundation still argued it held rights to commercially exploit Warhol’s banana design.
However, the band claimed the banana cover “has become so identified with The Velvet Underground… that members of the public, particularly those who listen to rock music, immediately recognize the banana design as the symbol of The Velvet Underground.” The band feared the image’s use could be confused as a band-endorsement of a product, and that the Warhol Foundation had no right to license it.
Unfortunately we’ll never know what the outcome of the trial would have been, because in 2013, the parties sensibly settled the dispute before it got to court.
Although the terms of the settlement have never been disclosed, I’d guess it was a revenue-sharing arrangement with the band, which is probably what the Warhol Foundation should have done in the first place, before getting very expensive lawyers involved to tell them what they already knew.
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