Written by Robert Cunningham Saturday, 14 January 2012 00:13

YES . . . We Can Sue About Warhol's Banana !

New York, NY - To rock 'n' roll historians, it's known as the album that first sold only 10,000 copies but inspired a generation. And now the record known as "The Velvet Underground and Nico," can take credit for something else some 45 years after its release: a federal lawsuit against the foundation that manages the work of artist and former friend, Andy Warhol. The Velvet Underground, which broke up in 1973, sued the Andy Warhol Foundation for the Visual Arts on Wednesday in Manhattan federal court. The suit came after press reports that the foundation had sold rights to the banana design to a maker of cases for Apple Inc. iPods and iPads. The band alleges the foundation violated its rights to the album design_a show of classic Warhol minimalism consisting of a bold, yellow banana above Mr. Warhol's signature.

The Velvet Underground, known best as Lou Reed, John Cale, Maureen Tucker and Sterling Morrison, never received trademark registration for the image from the U.S. Patent and Trademark Office. The band argues instead that it earned trademark rights by virtue of years of association with it.

"The Banana design became a symbol, truly an icon, of The Velvet Underground," reads the complaint. "What had been the cover design for one album...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."

Further evidence of the close connection between the band and the image, according to the complaint: a 2001 vodka advertisement in which the words "Absolut Underground" appeared beneath the iconic banana.

The Warhol Factory became a meeting place of artists and musicians such as Lou Reed, Bob Dylan, Truman Capote and Mick Jagger. Other, less frequent visitors included Salvador Dalí and Allen Ginsberg. Warhol collaborated with Reed's influential New York rock band The Velvet Underground in 1965, and designed the famous cover for The Velvet Underground & Nico, the band's debut album. The album cover consisted of a plastic yellow banana that the listener could actually peel off to reveal a flesh-hued version of the banana. Warhol also designed the album cover for The Rolling Stones' album Sticky Fingers.


Warhol included the Velvet Underground in the Exploding Plastic Inevitable, a spectacle that combined art, rock, Warhol films and dancers of all kinds, as well as live S&M enactments and imagery. The Velvet Underground and EPI used the Factory as a place to rehearse, though the definition of "rehearsal" should only be taken loosely.


"Walk on the Wild Side", Lou Reed's best known song from his solo career, was released on his first commercially successful solo album Transformer. The song is about the superstars he hung out with at the Factory. He mentions Holly Woodlawn, Candy Darling, Joe Dallesandro, Jackie Curtis and Joe Campbell (referred to in the song by his Factory nickname Sugar Plum Fairy).

The Warhol Foundation didn't return a call seeking comment.

Lawyers and intellectual-property experts say that to win its case, the Velvet Underground will have to show the design has come to be associated by the public with the band itself.

"This isn't necessarily going to be easy," said Marc Reiner, a trademark and copyright lawyer at Anderson Kill & Olick P.C., in New York. "After all, Andy Warhol's name is also on the cover."

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