Rights To Warhol’s Banana

This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.

On January 11, the Velvet Underground ("VU"), a business entity formed by the rock group "The Velvet Underground," filed suit against the Andy Warhol Foundation for the Visual Arts, Inc. (the "Warhol Foundation"). VU alleges that the Warhol Foundation committed trademark infringement by licensing the use of the emblem the group believes is its signature, the banana. The band had used the allegedly iconic mark on its first album, The Velvet Underground and Nico, published by MGM Records in 1967.

The Complaint states that in 1966 Andy Warhol publicly announced that he was sponsoring The Velvet Underground, and that it was at his suggestion that Christa Paeffgen, professionally known as Nico, sang three of the songs that the band recorded for its debut album. VU claims that Andy Warhol specifically selected, from an element of an advertisement in the public domain, the banana