When you think of a certain classic rock album released in 1967 with a bright yellow illustration of a banana on the cover, what name comes to mind: Andy Warhol or the Velvet Underground?
That’s one of the questions essentially at the root of a lawsuit brought by the influential band founded by Lou Reed and John Cale, which accused the Andy Warhol Foundation of Visual Arts of violating its copyright when it consented to the iconic image being used without the band’s permission on a planned line of iPhone and iPad accessories.
Though the band’s trademark suit continues, its cause was dealt a setback when a federal judge last week rejected the band’s request for a court order stating that the Warhol foundation had no copyright claim to the banana image.
In a bit of twisting legal logic, U.S. District Court Judge Alison Nathan reportedly dismissed that portion of the claim because the Warhol foundation had already pledged not to sue the Velvet Underground for use of the image, thus “there is no underlying cause of action sounding in copyright for Velvet Underground to head off,” she wrote.
The trademark case continues to move forward, however, and despite the judge not agreeing with the claims by the group, attorneys representing the band are confident their claim will be successful. Given that the image is said to be part of the public domain (Warhol never copyrighted it), the artist’s foundation has countered that the band also has no trademark rights to block the banana’s move into the world of stylish electronics.
It’s enough to make you want to “Run Run Run,” but at least the album will sound the same either way.