What’s that you hear? Is it the sound of Nico rolling over in her grave, groaning (beautifully, of course) over the recent scuffle between the remaining members of The Velvet Underground (VU) and The Andy Warhol Foundation (AWF) over the licensure of a picture of a banana? Why, yes it is.
Sure, it’s not just any old banana, it’s the Velvet Underground banana! And Apple, with their slick marketing and their scrubbing clean of today’s youth culture, want it! No one ever said to eat a banana a day to keep the doctor away! One might even go so far as to say that the VU banana is one bad apple.
Unfortunately for the VU, their claim to the banana in question is not looking so good. With the filing of their original lawsuit, VU claimed that the banana image comes from the public domain, and now the AWF, the organization trying to license the image to Apple, is claiming that because of this, and because the VU is not actively using their claimed copyright of the image, they should be allowed to do what they want with it. The VU have revised their lawsuit to remove most references to the public domain, but the basis for the AWF’s request that the case be thrown out has been established.
Furthermore, Billboard reports that the AWF’s case states that “‘trademark rights exist only in relation to specific goods and/or services’ and that a word, symbol or design can function as a valid trademark only if the mark is part of an ongoing business.” The last time VU officially licensed the banana was way 11 years ago when they got on the Absolut ad bandwagon (not to mention the fact that they haven’t actually been a band for 40 years). It seems mid-priced vodka is good enough for the likes of John Cale and Lou Reed, but Apple, heavens no!
The question still remains: would the group of consumers that Apple is realistically marketing to even get the reference?