One has to wonder at the timing involved in The Andy Warhol Foundation’s latest licensing of the famous 1967 Velvet Underground & Nico banana graphic to toy manufacturers Medicom Toy and popular Japanese urbanwear designers, A Bathing Ape. The trio has partnered to create the the BAPE CAMO BANANA pillow, designed with the legally contested banana graphic as a zip off cover. The pillow is available in three sizes and unzips to reveal A Bathing Ape’s signature green, pink, or blue camo. An indiscrete side seam features both the AWF Andy Signature label and BAPE label.
Given the January 11th lawsuit which lays claim to the graphic which was brought against The Andy Warhol Foundation by The Velevet Underground’s Lou Reed and John Cale, this new licensing deal begs the question of whether it is a strategy to stake out a stronger legal claim to the banana graphic, an in-your-face jibe, or simply an ironically timed merchandising opportunity?
It’s a cruel world that makes a thief out of an adoring fan. Erik den Breejen is a keen Beach Boys fan and one who knows, now, what the back of a beloved hand feels like.
On January 13, 1966, Andy Warhol pulled out all the stops for his debut of The Exploding Plastic Inevitable, a series of events featuring his films, and performances from Factory Super Stars. Performing at “Uptight” the opening event which took place at the New York Society of Clinical Psychiatry, a new band, The Velvet Underground were instantly made by the Warhol star-maker machinery.
Taking the band under his wing, Andy Warhol produced their first album pressed in 1967, The Velvet Underground & Nico, for which he also created and signed the now famous banana graphic. Though the band broke up in 1972, Lou Reed and John Cale have, they say, continuously used this image in marketing and promotion for 25 years, most recently to promote a1989 re-union tour and record, Songs for Drella, which they made in tribute to Warhol.
Is this The Velvet Underground's trademark.
On Jan 11, 2012, The Velvet Underground filed a suit against the Andy Warhol Foundation for the Arts (AWF), essentially the Warhol estate, accusing them of illegally leveraging copy rights to the image which they never registered officially, and of licensing it to third parties “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.”
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 seeks an injunction against the AWF, to make them stop licensing the banana to third parties. They also demand a declaration that the Warhol Foundation has no copyright interest in the design, are demanding “unspecified damages”, and a share of the profits made by the Warhol Foundation from any licensing deals.
“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,” say the plaintiffs who are claiming a trademark on the image.
A pop-culture savvy friend of mine begs to differ. Social media consultant, Nichelle Stephens says, “There are two whole generations that would disagree. Gen Ys and Millennials don’t even think about album art anymore. They’d just think it’s a Warhol.
Also curious is the claim that the AWF have “no copyright interest” in the banana. Apparently the claim by Reed/Cale is that since Warhol never obtained a formal copyright got the graphic, and subsequently the AWF published the image many times, it is “in the public domain.”
Now, I’m left with many questions which I plan to answer in a follow up…
Doesn’t the artist own the copyright whether they registered it or not?
And doesn’t a copyright hold for the lifetime of the artist +75 years?
And wouldn’t that copyright go to the artist’s heirs, again, whether registered or not?
And if the heirs were using the image simultaneously with someone else, couldn’t they retain trademark rights if their use were equal to the others?
On the other hand, if a copyright is never claimed but the art has been gifted to a record company or a band, or, maybe was a ‘work for hire’ then wouldn’t the copyright belong to the beneficiary or employer?
And one more question: can one claim a trademark on an image they never registered, and that has been in the public domain?
I’m confused as to why no reports thus far address these questions. I plan to.
It’s okay to love Simon de Pury. I’ve said before that hisPhillips Art Expertsite is really fun: it has video and games and contests and lots of color. It’s a great way to rake in the low-brows like myself who love to see the art universe brought down to size, demystified and even made out to be kinda cute. :)
So I say, big deal if Stuart Jeffries gets all fan-club on us, talking about how cool de Pury is: the dude’s just giddy-making with his darling themed auctions and his “elegant, leggy gait”.
“Art is not a bad thing to invest in. Historically, it has outperformed most other asset types.”
~ Simon de Pury
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White Column’s Celebrity Line-Up
White Columns’ 2010 BENEFIT EXHIBITION + AUCTION (on view ON VIEW APRIL 24 – MAY 15,) shows an impressive list of donating artists. Impressive in size, but also in the celebrity status of the artists themselves, with the Turner Prize winning, Toma Abts, famed prankster Maurizio Cattelan, the notorious Billy Childish and David Byrne even.
FINALLY, the pious facade that art marketers apply as protection to their artists, their buyers, their collections, and their reputations, is being — um– noticed.
In April 16th story for the New York Times, Randy Kennedy begins:
“Imagine a market for highly sought-after items in which the makers and sellers work hard to ensure that the items go only to certain buyers, even if other buyers might be willing to pay more. The favored buyers are then expected not to resell the items for many years, even if the values skyrocket. Ideally, in fact, the buyers are expected to give these items away eventually, for the public good. And if the buyers don’t abide by these expectations, they risk being cut off, cast out with the other unwashed wealthy who can afford to buy but have no access.”
Anyone familiar with the art market and the practices of dealers and consultants on the one hand, representing the primary market, and auction houses, on the other, representing the secondary market (traditionally), will not have to “imagine” very hard. Market savvy dealers have always sought to “place” art rather than sell it, seeking to create a prestigious provenance for their artists. And auction houses used to refuse to touch art any younger than five years old, seeing it as a tasteless and destructive practice to sell new pieces in the secondary market.
But it’s really nice to see that the practice, and it’s very elitist, very very naughty implications are finally being brought out into the light.
And in a very amusing tale of what appears to be petty vengeance, a woman scorned, in this case Marlene Dumas, has, it seems, blacklisted one Craig Robins, because he made her look bad by selling one of her works from his collection to David Zwirner Gallery.
The Art Machine 