The legal battle over a 45-year-old banana - in this case, one that Andy Warhol created for the debut album by the Velvet Underground - can continue, even after a federal judge threw out a portion of the suit brought by the band against Warhol's foundation.
In January the Velvet Underground co-founders Lou Reed and John Cale filed suit against the Andy Warhol Foundation for the Visual Arts, saying it illegally licensed the familiar banana image Warhol designed for the cover of “The Velvet Underground & Nico†(the one that peeled away to reveal a pinkish-colored fruit underneath). The appearance of the image on costly iPad sleeves and other items, the band members said in their complaint, improperly suggested they gave their “sponsorship or approval†to these products.
On Friday, The Hollywood Reporter said, Judge Alison Nathan of United States District Court in Manhattan dismissed the tangled copyright portion of the lawsuit. The band had argued that the banana image was in the public domain (and thus could not be copyrighted by the foundation) while contending that a covenant from the foundation not to sue for copyright infringement was not broad enough to protect the band members if it later tried to license the image. (The judge said the covenant would cover them.)
But the band can still press its trademark claim, under which it argues that “members of the public, particularly those who listen to rock music, immediately recognize the banana design as the symbol of The Velvet Underground.â€
In a motion to dismiss the case in March, the Warhol Foundation said the Velvet Underground could not claim a trademark for its ongoing business since the band broke up in 1972.
The foundation said earlier this month that it would disperse its collection of Warhol art through auctions and donations as it shifts to become a grant-making organization.
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