Following up on the Velvet Underground v The Andy Warhol Foundation story, Hollywood Reporter speculates similarly to The Art Machine that the famed fruit’s copyright may belong to the record label.
Hollywood Reporters’s Eriq Gardner, wondering why the Velvet Underground hasn’t used a more fail-proof strategy of claiming the copyright for themselves (instead of opting to claim trademark protection on an image in the public domain) says,
“According to the facts in record, MGM Records paid both the band and Warhol $3,000 to furnish the image for use on the 1967 album cover. If the record label paid the money as a work-for-hire agreement, the true “author” of the image, under the law, would be the record label. We asked Universal Music Group, the seeming successor to MGM Records, to comment, but so far, we haven’t heard anything.”
It is an interesting speculation and one we may wonder about: is MGM silently planning its own little coup? And, if so, was it inspired by the Velvet’s bold but transparent strategies, or by press speculation about the Warhol graphic being a “work for hire?”
Or, maybe MGM has secret plans prompted by questions from sites like Hollywood Reporter asking them questions about the graphic? How meta would that be?
In 1966, when, then producer and manager, Andy Warhol created and signed the now famous banana graphic for the Velvet Underground’s debut album, copyright laws were different. An unregistered copyright could result in a loss of copy rights. Apparently by the time the album, The Velvet Underground & Nico appeared in 1977, Andy Warhol who never did register the logo, did not hold intellectual property rights to it.
What is more, he was paid for the design by the record label, which can mean that the banana was actually a work for hire. In that case, the copyright would have belonged to the Velvet Undergound’s label. But they never registered it either.
Although they disbanded in 1972, Lou Reed and John Cale say they have continuously used Warhol’s banana in marketing and promotion for various VU brand items and to promote their 1989 re-union tour and record, Songs for Drella, (their tribute to Warhol). This means that they may hold a common law trademark.
Indeed, Reed/Cale claim the image is indelibly attached to the band’s brand and is instantly recognized by the public to be an imprimatur of the Velvet Underground.
According to the band:
“The symbol 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”
Their current trademark and unfair competition lawsuit against the Andy Warhol Foundation for the Arts (AWF), filed on Jan 11, 2012, accuses them of illegally leveraging copy rights to the image by licensing it to third parties (Apple, for one) “in a manner likely to cause confusion or mistake as to the association of Velvet Underground with the goods sold in commerce by such third parties.”
The AWF never registered the banana either. And since they have published the image many times without any official right to it, Reed/Cale claim that the AWF have “no copyright interest” in the banana, and that it is, in fact, in the public domain.
Suggesting that, with so many graphics to choose from, The Andy Warhol Foundation can only be using the banana to capitalize on its association with The Velvet Underground, the band is seeking an injunction against the AWF, to force them to cease licensing it to third parties. Reed/Cale are also demanding “unspecified damages” and a share of the profits made by the AWF from any past or ongoing licensing deals.
The suit also demands a declaration that the Warhol Foundation has no copyright interest in the banana.
Recently, reading an article on NewsGrist, a blog that mixes equal parts of arrogance and naiveté, I came upon the usual blah blah about inarticulate artists and the ineffable meaning of their awe inspsiring creations. Add to this a wholesome toot of tired and foggy hot air about Pollock and what did he mean by x,y, or z?
All this wearying nonsense went toward commentary on the Richard Prince case, childishly insisting that Richard Prince’s cocky and deliberately bungling deposition claiming that he meant nothing should simply be ignored while the rest of his deposition, i.e. anything supportive of his fair use claim, should be paid close attention to.
I marvel at this “inarticulate” artist argument— especially as regards Richard Prince, a self named bibliophile who wrote a screenplay and who’s written prose is not only proficient but downright poetic.
The argument that artists would or should need coaching is silly as well. ALL defendants need coaching. EVERYONE who speaks or debates in public has talking points. There is nothing unique to artists that should absolve them of having to make sense.
A fair use defense is not a matter of defending the “ineffable” — we are cultural grown-ups and well beyond such assinine and childish beliefs.
If a defendant wants to claim fair use, they have to prove fair use and that hangs largely, especially in this case, on Transformative use. That’s the way the current practice works.
I happen to think that transformative use is useless anyway: that’s a better argument. Frankly the spirit of copyright law is to preserve the incentive to create. ANd bottom line, these days, that speaks to markets: markets of IDEAS, of INFLUENCE, of ATTRIBUTION, and of MONEY.
So PRACTICE is the issue if you dont’ like coached answers and you don’t like judges mucking about in issues of meaning –practice needs to be changed with regard to transformative use. Remember that transformative use is NOT written into law. Courts can and should pay more mind to market issues and less to “meaning.”
But as things stand, Prince messed up big time by being a cocky inarticulate asshole.
Providing a pivot for the Cariou v Prince case and the only real point of interest no matter what the pundits say, transformative use, instead of the fog-clearing test that it was supposed to be, has become the main particulate in a legal fog of war that has lasted three years now.
Thus far, the dueling Cariou v Prince briefs have added new certainty to my theory that transformative use is a singularly unhelpful notion.