Design Infringement: Andy Warhol’s Banana

The World Trade Organization defines Intellectual Property Rights (IPR) as, “the rights given to persons over the creations of their minds,” — sounds a little vague, very broad and difficult to define. That’s the challenge that creatives have to deal with daily in defining their work and trying to protect it.

One of the highest profile IPR cases was settled in July of this year for undisclosed terms between The Velvet Underground and the Warhol Foundation, a suit that challenged whether the Foundation owned all of Warhol’s work or if his ventures such as The Velvet Underground could claim ownership of some of his work, specifically the banana drawing that Warhol drew for the studio album cover of The Velvet Underground & Nico.

Design Infringement1960s
You can’t think of Warhol without remembering The Velvet Underground. He was their producer and manager, albeit often absent, and his presence alone was largely the reason for their exposure. I hesitate to say success although their work is critically acclaimed and well worth spending time listening to and researching. But they sold few albums and spent most of their time playing at Warhol’s The Factory or Exploding Plastic Inevitable events. Arguably, they were brilliant. Both principal band members, John Cale and Lou Reed, were scholars. Cale came to the states from Wales on a scholarship to study classical music and Reed was an English major at Syracuse.

Although The Velvet Underground survived on and off with different band members into the mid-nineties, Warhol’s cover/album would be reissued several times under different labels as cds and remixes emerged.  It continued to define the band and the era or from the day of its creation. The Velvet Underground & Nico album has been referred to as legendary and listed by Rolling Stone magazine as one of greatest albums of all time.

So you can imagine how Reed and Cale, now Sir John Cale, and other band members from the early days felt when they learned the Warhol Foundation planned to take The Velvet Underground’s/Warhol’s banana and commercialize it. When reports of licensing it for iPad and iPhone merchandise reached the group in January 2012, they sued.

According to Reuters, “In the lawsuit, The Velvet Underground claimed exclusive use of the banana design for licensed merchandising. The lawsuit sought damages and an injunction to prevent the foundation from licensing the image.”

The Foundation countered stating, “The Velvet Underground had no enforceable trademark rights to the image.”

How did it end?

As I mentioned earlier, the terms weren’t disclosed, but Reuters also reported that “in September the judge, Alison Nathan, found that an agreement by the Warhol Foundation not to sue Velvet Underground for copyright infringement nixed any copyright questions.”

Which adds more questions about Intellectual Property Rights and Design Infringement — what happens if you have a separate agreement not to sue, does that mean you give up your rights. You’ll have to ask William M. Borchard, counsel at New York intellectual property law firm Cowan, Liebowitz & Latman. Beginning October 14 for four weeks, he will lead a HOW Design University workshop called, An Introduction to Intellectual Property Rights for Graphic Designers. The four week session will assist creatives in understanding:

  • How each form of IPR differs from the others and applies to graphic design
  • Why it is important for you to understand and use these rights
  • How to protect your graphic design creations
  • How to avoid infringement claims by others
  • How employment and engagement contracts can affect your rights
  • International aspects of IPR

Intellectual property rightsTo learn more or to sign up for the workshop, visit the How Design University.

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