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back to article Banana war: Velvet Underground shoots holes in Apple bag

Legendary New York band The Velvet Underground has filed a lawsuit against the Andy Warhol Foundation, after the deceased artist's company agreed to a licensing deal with a case- and sleeve-maker for Apple products. The pop group, fronted by Lou Reed, has accused the foundation of infringing the trademark for the famous banana …

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Joke

OOK!!

as the librarian of Unseen University said when asked to comment.

I could not agree with him more

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Hold a tick

If the source image is public-domain, then Incase do not need a license from The Andy Warhol Foundation, and the Velvet Underground have even less of a leg to stand on.

Shirley VU need to show that the image was created by AH for them, and exclusive rights were assigned to VU?

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Happy

My thoughts exactly..

And don't call me Shirley.

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Yes but...

just because the image is in the public domain does not mean it is not copyright

The Irish artist Jim Fitzpatrick, who created the iconic image of Che Guevara, originally distributed the image copyright-free for use by "revolutionary groups in Europe".

However, at the moment he is trying to reclaim the copyright on the image so "that it's not used for crass commercial purposes", he also intends to give the ownership rights to Guevara's family.

http://www.reuters.com/article/2011/02/17/us-ireland-art-che-idUSTRE71G5UG20110217

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I had to read it twice.

I think they're saying that

(1) the image is a trademark of their own.

(2) In case there -might- be an argument that with Warhol's copyright, Velvet Underground's right to the image is limited, they argue that the image is public domain and not copyrighted. Only in applying it to, say, a music audio and video playing appliance, is their trademark trespassed on.

I'm not a lawyer but... I suspect that before Warhol had the image, it wasn't coloured yellow. Would that be enough to establish a new copyright? Conveniently, we can look at the legal status of his portraits of soup cans and Marilyn Monroe, to get an idea.

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cool

Can I be there when he tries to repossess Mike Tyson's tattoo?

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Well if they are claiming that the banana image is a trademark then I can't help but think that the V.U. are on to a winner, especially if warhol created the image when he was the bands manager.

Most jurisdictions consider a trademark to be a form of property and rights in relation to a trademark may be established through actual use of the image/trademark which should be of a distinctive character.

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Happy

Please don't tell me that this Apple case-maker is citing...........

..............."prior art". That would be richly ironic in the circumstances.

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Pirate

Very confusing

"The Velvet Underground claimed that the design could not be copyrighted because Warhol took the banana image from an advertisement that was in the public domain".

IANAL, but is copyright not automatically assigned for "the work" which Warhol created no matter what its source material was? That work being the album cover, the iconic banana image with Warhol's moniker alongside it.

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Vic
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> IANAL, but is copyright not automatically assigned for "the work"

It is now, but that was not always the case under US law.

You'd have to look up what the controlling legislation was in the late '60s...

Vic.

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Facepalm

Non-conformist?

"...he creative, non-conformist spirit of Andy Warhol ... "

And they make *Apple*-related products? Is there anything else as conformist as those?

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Anonymous Coward

By market share

By market share both Android and Windows are more conformist.

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Anonymous Coward

By Walled-Garden Control on useless iShit

By Walled-Garden Control on useless iShit, Apple is the MOST conformist

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Hard to think differently

Especially when all their computers have looked the same for several years now. Especially now where you can chose any color you want as long as its piano black and Brushed aluminum. Hell Dell Laptops come in more colors and at least allow a small amount of individuality.

I was at a meeting where there were a dozen people there with a MacBook, when we came back to lunch everyone had to turn the things on to know which one was theirs. Those with PCs grabbed theirs and went along their merry way.

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Anonymous Coward

By walled garden you mean quality control? Take that any day over the malware, duplicate junk apps of the flea market. What quality apps or games are ios users missing out on?

Conformist? Ha! We're all conformist. You go to school? Do you have a job? Do you pay taxes? Oh shit your just like everybody else.

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re: everyone had to turn the things on to know which one was theirs.

That'll be why they need cases with Bananas (etc) on.

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Anonymous Coward

Thinking logically about it

In my experience, those who proclaim (and try hard) to be 'non-conformist' are normally very vocal self-righteous arseholes.

Those who are actually non-conformist don't usually mention it (not sure they even realise entirely) and it's just noticed by everyone else.

Those who are conformist either get on with it quietly, or try to make life hell for those that aren't.

So based on that;

Windows Phone users really _are_ non conformist.

Apple Users are trying to be non conformist

Android Users will fall within conformist, with exceptions trying to be non-conformist.

Logic never lies!

Miss being able to use the JOKE ALERT icon as an A/C

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Anonymous Coward

Andy Warhol

Now, I quite like a lot of modern art, but I've always thought that Andy Warhol is over rated, I just don't "get it" when it comes to his work.

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I've always liked art, but I declared it dead when a painting of a soup can became worth more than Renaissance paintings.

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Gold badge

He was famous for pop art. It probably doesn't stand out or look radical now but it did in the late 1950s.

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Using the term "art" along with "Warhol" ...

... is right up there with "military" and "intelligence".

Let the drug addled fool rest in peace, already.

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Anonymous Coward

Nothing wrong with 'military intelligence'.

It's 'light infantry' that's the oxymoron.

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Trollface

Using the term "art" along with "Warhol" ...

... is right up there with "microsoft works"

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Anonymous Coward

Looks like they want to have their banana and eat it too!

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Meh

Hmmm - interesting

Their argument seems to be that there is no artistic copyright in the image (dubious) over which the Warhol Foundation can exercise control, but that VU have acquired trade mark rights through extended use (at least potentially valid - you can acquire (limited) trade mark rights even in commonly used words in such a way, and the VU banana is certainly distinctive). There is likely some conflict between respective copyright and trade mark rights - I very much doubt that in the heady days of the Factory these fine legal nuances would have been thrashed out between the VU and Warhol.

Predicted score: lawyers 5 - 0 other parties. I'll settle for All Tomorrow's Parties.

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Your analysis is spot on. Your last line, as good as it gets.

I spent my nights for four years in the red fluorescent back room of Max's Kansas City. And was acquainted with both Lou and Andy. As you said, there would have been no thrashing out between Warhol and Reed. Warhol was loyal to his friends. He wouldn't think any more of giving Lou Reed the copyright, real or implied, to one of his images, than you would about stuffing a buck in a tip jar. He obviously gifted VU the use of the banana image and the implied ownership of the copyright. He had no idea then he would end up a 9 figure foundation.

His foundation is much more interested in accruing fees and royalties from his images, than it is maintaining the image of what Warhol once was.

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Bah!

I'm surprised Bangs can remember *anything* that was said to him in 1971.

Anyway, the banana is already prior art as a computer-related trademark. Oliver Wendel Jones had a Banana Jr. 6000 in 1985.

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Anonymous Coward

I'd be surprised if Bangs can remember anything at all since he died from his cough medicine habit (and other stuff) in the early 1980's. A shame, coz I'd love to read what he'd say about the guff that gets peddled as music today.

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Boffin

Hi

Prior art is relevant when discussing patents.

Not copyright.

They are different.

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Value comes from where?

As things stand, the value of the image in reproduction seems likely to be related far more to the band than to Warhol.

Just as the main reason for an 'original' Warhol being worth anything is its association with him, however much or little artistry may have been involved in its production, and however much of that he might have done himself, the main reason the image concerned is recognisable to anywhere /near/ as many people as it is is down to it being the cover of a popular album.

Had it simply been an image on a gallery or collector's wall for the last 40 years, the original would presumably be worth something, but it seems unlikely that enough people would be aware of it to make anyone think it would shift much merchandise.

If you asked 100 people who easily recognised this image "Did Warhol do any *more* images of fruit, or was this a one-off?", I wonder how many would know?

Or care?

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Warhol Foundation has past form...

The Andy Warhol Foundation is highly litigious, and very keen at asserting their rights, even when others would question that they hold those rights. (See the New York Review of Books at http://www.nybooks.com/articles/archives/2009/oct/22/what-is-an-andy-warhol/ and screeds of subsequent letters to the editor.)

So they make an ideal partner for Apple.

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>>"The Andy Warhol Foundation is highly litigious, and very keen at asserting their rights, "

I wonder how much they spend on themselves and their lawyers, and how much on doing anything useful?

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Easy answer

"I wonder how much they spend on themselves and their lawyers, and how much on doing anything useful?"

Since what they make are legal contracts for other people to use a deceased artists works and lawsuits against people who don't have a contract, I'd say what they spend on themselves and their lawyers is approximately 100%. How that breaks down further I won't hazard guess... unless the foundation is composed of lawyers then it's trivial really.

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bep

Astounding

So Warhol's been dead for 25 years but there are still arguments about copyright on his work. It should have all gone into the public domain the moment he snuffed it.

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Vic
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> It should have all gone into the public domain the moment he snuffed it.

No. Everyone should have the ability to leave some sort of legacy to his heirs.

But it should all be public domain by now...

Vic.

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Unhappy

Till the taxman cometh

Inheritance tax suggests your right to leave anything to your heirs is severely limited.

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Anonymous Coward

Why?

Why should someone's hard work simply be given away when they die, what gives you the right to decide? That's up to them to decide and the reason we have "the will" enshrined in law, so upon death a person's final wishes can be respected.

If you work hard on something it's entirely your choice how your stuff is sliced and diced when you pop your clogs. What I disagree with is when some greedy corp decides that an artist is long dead and they will assume control of that artists work purely for profit, not even bothering to get in contact with any remaining distant relatives. In this case there was a group designated the task of looking after Warhol's work according to his last wishes.

You sound just another whiny freeloader who thinks the world owe's you something for nothing.

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In this case there was a group designated the task of looking after Warhol's

work according to his last wishes.

How do you know that he didn't want the VU to have the right to that image?

The VU had an unencumbered right to use that image by from 1967 until 1987 when Warhol died, and without the Foundation asserting any claim of copyright until they licensed Incase in March 2011.

And their claim was not against VU; it was the right to cash checks from Incase.

The foundation will, it seems to me, have to prove that Warhol intended for, not the actual painting of the Banana, which was never out of his control, but the copyright of the Banana to be part of his estate.

"Lou, when I die I want my estate to have the copyright of Banana. How would you guys like an apple with a bite missing."

Bah. Humbug.

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Pint

Apple vs Banana?

Too much fruit for me. Make a salad out of them - job done.

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Foundation

I would be happier if the Andy Warhol Foundation spent more of its time promoting radical art and new ideas in schools etc.than spending all its money on lawyers etc.

Looks like they are part of the problem.

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Agree; but on the other hand...

Los Angeles Times December 13, 2010

"The controversy over the Smithsonian Institution's decision to remove a piece of artwork that was on display in the National Portrait Gallery took another turn Monday when the Andy Warhol Foundation for the Visual Arts issued a letter vowing to stop funding future exhibitions at all Smithsonian institutions if the artwork is not restored immediately."

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Headmaster

Jobsian Grammar

“Incase for Andy Warhol is a fitting tribute to the artist who continues to inspire us to think differently.”

"Think Different", surely?

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FAIL

Do they have written transfer?

Copyright rests with the creator of the work.

While the source of inspiration may have been an advert, Warhols treatment undoubtedly created a work in its own right.

Under US law, copyright rests with the creator of the work unless there is a written transfer. For all I know, Warhol may well have never transfered the copyright to Velvet Underground in writing, and hence their use of the image is under an implied license.

i predict, that unless they have a written assignment of copyright signed by Mr Warhol, they will lose.

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You are obviously correct.

But If there were "a written assignment of copyright signed by Mr Warhol," we would have heard about it by now.

Whether or not the VU will lose remains to be seen. If it were Warhol's intention and wish that the VU have the copyright and trade mark rights to that Banana image, I don't think a Manhattan jury will trample the desire of one of its great artists into the ground.

"Warhol managed the Velvet Underground and it was the house band at his studio, the Factory, and his Exploding Plastic Inevitable events. Their 1967 debut album, titled The Velvet Underground & Nico (which featured German singer Nico, with whom the band collaborated) was named the 13th Greatest Album of All Time, and the "most prophetic rock album ever made" by Rolling Stone in 2003.[6][7] In 2004, Rolling Stone ranked the band #19 on its list of the "100 Greatest Artists of All Time".[8]

At Warhol's insistence, Nico sang with the band on three songs of their debut album, The Velvet Underground & Nico. The album was recorded primarily in Scepter Studios in New York City during April 1966. (Some songs were re-recorded, along with the new song "Sunday Morning", later in the year with Tom Wilson producing). It was released by Verve Records in March 1967.

The album cover is famous for its Warhol design: a yellow banana sticker with “Peel slowly and see” printed near the tip. Those who did remove the banana skin found a pink, peeled banana beneath.

Eleven songs showcased their dynamic range, veering from the pounding attacks of "I’m Waiting for the Man" and "Run Run Run", the droning "Venus in Furs" and "Heroin", the chiming and celestial "Sunday Morning" to the quiet "Femme Fatale" and the tender "I’ll Be Your Mirror", as well as Warhol's own favorite song of the group, "All Tomorrow's Parties." (Gobhicks likes it, too).

So the Banana trademark/ copyright/logo was held by the VU from 1967 until 1987 when Warhol died with no claim of infringement from the artist and from the beginning of the Warhol Foundation until April of last year without out any objection from them.

If Warhol did manage the band in in the mid 60's who can say what verbal contracts existed between them? All we can go by is Warhol's disinterest attitude about VU using that image.

I'll go with Lou Reed.

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Pint

Always good to see Lester Bangs mentioned ... is it wrong that he is as close as I get to having a hero?

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Terminator

Give it another 10 years

And most all of the interested parties will be dead anyway.

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