Consequently, VU brings this action under the Lanham Act, and the common law
of New York State, for appropriate relief, including, without limitation, an award
of attorneys’ fees.
The Warhol Foundation has sought to justify its unlawful licensing activitiesinvolving the Mark by asserting that it has a copyright interest in the Banana design,despite the incontrovertible fact that the Banana design, insofar as copyright rights
are concerned, is in the public domain. The Banana design was ﬁrst published in
, and continuously and repeatedly afterwards, without any copyright notice,
and neither Andy Warhol, the Warhol Foundation, nor anyone else, has appliedfor registration of any copyright or deposited any sample of the work with theCopyright Ofﬁce. Under the applicable copyright law—which is the Copyright
Act in effect from July
publication without a copyright notice irrevocably placed the Banana design inthe public domain, if it was not there already.
Consequently, VU also seeks a
declaration, under applicable copyright law, and pursuant to
, that the Warhol Foundation has no copyright rights or interest in the Banana
VU is the business entity formed by the rock group “The Velvet Under-ground,”
regularly active as musical performers from
often described as one of the most important and inﬂuential groups of the
, the music magazine
named The Velvet Underground’s ﬁrst
commercially released album entitled
The Velvet Underground and Nico
When it is useful or necessary to distinguish the rock group and its members from
plaintiff as a business entity, the group is referred to as ”The Velvet Underground.” The
term VU, however, should be read to include the group itself, and its members, unless the
context otherwise requires.