Of Music, Art, Trademarks and a 45-Year-Old Banana

It may be spotty and four decades old, but the iconic banana image Andy Warhol designed for the Velvet Underground's debut album in 1967 is at the center of a very modern copyright and trademark battle.

Although the Velvet Underground disbanded in 1972, their music lives on among hipsters, college kids and anyone who appreciates Andy Warhol's art. The Velvet Underground were part of the same scene as Warhol, perhaps inextricably so because he was also the band's manager and producer, and that's where the legal complications begin in our current case.

The banana image basically became the Velvet Underground's logo over the past few decades, which is not a problem for the band because the Warhol Foundation signed a covenant not to sue them for copyright infringement - even going so far as allowing the band to license the banana image to others (as it did in 2001 when it licensed the banana to Absolut Vodka for an ad). But when the Warhol Foundation licensed the banana image to be used on pricy swag such as a $149.95 shoulder bag, a $59.95 protective sleeve for the iPad, and other iPhone/iPad accessories, band members Lou Reed and John Cale sued the foundation and accused them of trying to "deceive the public" into thinking the Velvet Underground had endorsed the banana-fied products.

Warhol, who died in 1987, never copyrighted the banana image himself. The Velvet Underground noted that the banana logo was its trademark in a CD box set it issued in 1995.

Untangling the case's copyright and trademark issues is a daunting task, but a federal judge took a step in that direction this week when she dismissed the band's claim that the banana image was in the public domain and could not be copyrighted by the Warhol Foundation. However, the band can still make their claim for trademark infringement despite the Warhol Foundation's argument that the band broke up in 1972 and thus cannot claim a trademark for ongoing business.

We'll be watching this interesting lawsuit to see which way the banana peels.