When is a Banana Not a Banana?

When it’s a trademark.

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.

Some Answers: Banana Fanna Faux

Feel Free to Match the Couch: A Guide to Buying Art Online

Popping up, all over the internet, like bald little mushroom heads in the corner of an overgrown garden, are dozens of buy-art-online sites. Their spores are in the air. There’s a new one every day, with offerings that cover the whole gamut of affordability, quality and snob appeal.

It’s time to match the couch, my friends — shamelessly, and in the privacy of your own homes; the way you shop for porn.

BZA CO

Continue reading “Feel Free to Match the Couch: A Guide to Buying Art Online”

Shepard Fairey Changes the Mainstream

wall
Before Shep got to it, the wall had been tagged.

The wall at Houston and Bowery has sported Keith Haring’s crawling babies, and Os Gemeos’ trippy amusment park: now it’s wearing something from the OBEY line of products: a wheatpaste collage in Shepard Fairey’s best and latest fascist poster colors. It’s looking good.

The wall will be finished in time to promote Fairey’s upcoming show at Deitch Projects, May Day: a series of portraits of revolutionary personages who, “started out on the margins of culture and ended up changing the mainstream.”

But a few steps too many into mainstream, and one may not end up changing it, but only changing how one makes money in it.

From the OBEY site
From the OBEY site

For example: the May Day show will reflect the incendiary mood of spray can and eaves-clinging guerilla art, with it’s tribute to political activism; in the meantime it will also serve to promote Shepard Fairey’s OBEY clothing line. And the OBEY clothing line, will spring a pop-up store on Orchard Street coinciding with the Deitch show, thus providing a promotional supplement to it.

As if there’s not enough money in all that marketing, recall that this will be Jeffrey Deitch’s last show at the Wooster street location before he closes shop and moves off to LA MOCA. The draw will already be huge.

Shepard Fairey, May Day
Deitch Projects | 18 Wooster Street, New York
May 01, 2010 — May 29, 2010

MORE SNEAK PEEKS at Flavorwire

OBEY Pop-Up Store
151 Orchard Street, New York
April 30 – May 16

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Addendum: On April 22, as Shepard Fairey and crew were clearing out and getting ready to go get some dinner after finishing the mural on Houston Street, I, and my husband, David Kaplan, a writer for PaidContent, stopped to chat with him. David asked him some questions about his law battles with the Associated Press. Here’s a link to the story.

Shepard Fairey: AP Suit Driven By ‘Crumbling Business Model’; AP To  Fairey: You’re The Hypocrite
by David Kaplan

RELEVANT LINKS:
Shep's Words on AP case

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SUPERTOUCH:
a nice little history of appropriation

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REVIEW: Banksy’s Exit Through the Gift Shop

“Is this the line for the mooovie?” I heard a mystified woman ask as she applied herself to the back end of a line that had advanced from the basement to the top of the stairs.

The line at Sunshine Theater
Snaking Through the entire downstairs, the Banksy crowd

We were at the Sunshine theater to see Banksy’s Exit Throught the Gift Shop, a documentary, by label, about street art and an unlikely new star, Mr. Brainwash.

Something like this could have been expected in the UK, where folks care about art and are intimately familiar with Banksy’s beginnings as street vandal in Bristol. But here? Even in New York’s lower east side, we hadn’t expected to see a crowd like this.

It turns out the movie was worth our wait. I think it was even GEEENYUS, or something like that.

Continue reading “REVIEW: Banksy’s Exit Through the Gift Shop”

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