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.
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.
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.