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.

2

.

The W arhol Foundatio n has sought to justify its unlawful licensing activities involving 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 domai n. The Banana design wa s ﬁrst publish ed in

1967

, and continuously and repeatedly afterwards, without any copyright notice,

and neither Andy Warhol, the Warhol Foundation, nor anyone else, has applied for registration of any copyright or deposited any sample of the work with the Cop yright Ofﬁce . Under the applic able copyrig ht law—whi ch is the Cop yrigh t

Act in effect from July

1

,

1909

through December

31

,

1977

(the ”

1909

Act”)—such

publication without a copyright notice irrevocably placed the Banana design in the public domain, if it was not there already.

2

Consequently, VU also seeks a

declaration, under applicable copyright law, and pursuant to

28

U.S.C. §§

2201

and

2202

, that the Warhol Foundation has no copyright rights or interest in the Banana

design.

Factual Background

3

.

VU is the busines s entity formed by the rock grou p “The V elv et Under- ground,”

3

regularly active as musical performers from

1964

through

1973

, and

often described as one of the most important and inﬂuential groups of the

1960

s. In

2003

, the music magazine

Rolling Stone

named The Velvet Underground’s ﬁrst

commer cially releas ed album entit led

The Velvet Underground and Nico

the

13

th

2

See ¶

18

& note

16

.

3

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.