This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.

On January 11, the Velvet Underground ("VU"), a business entity formed by the rock group "The Velvet Underground," filed suit against the Andy Warhol Foundation for the Visual Arts, Inc. (the "Warhol Foundation"). VU alleges that the Warhol Foundation committed trademark infringement by licensing the use of the emblem the group believes is its signature, the banana. The band had used the allegedly iconic mark on its first album, The Velvet Underground and Nico, published by MGM Records in 1967.

The Complaint states that in 1966 Andy Warhol publicly announced that he was sponsoring The Velvet Underground, and that it was at his suggestion that Christa Paeffgen, professionally known as Nico, sang three of the songs that the band recorded for its debut album. VU claims that Andy Warhol specifically selected, from an element of an advertisement in the public domain, the banana illustration that appears on the album cover to which Warhol added his stylized signature, and that Warhol received a split of the $3,000 record deal advance from MGM in consideration for the illustration. Despite the near failure of the album, VU claims that the banana design is an iconic image that was used in the group's reunion tour in Europe in 1993, the cover design for the compact disc albums, the VHS tape and the DVD that resulted from the tour, as well as a five CD retrospective tribute album entitled Peel Slowly and See, which it released in 1995.

As reported in the New York Times, the Warhol Foundation licensed the banana design for use on a new series of iPhone and iPad cases, sleeves, and bags created by Incase. VU is suing for exemplary damages and profits for an alleged Lanham Act violation, and violations of New York State laws. It also seeks a declaratory judgment that there are no copyrights in the banana design that the Warhol Foundation could enforce, or that VU could violate.

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