Back in February 2012, we reported on the Velvet Underground’s suit against the Andy Warhol Foundation over the latter’s use of the banana image from the cover of the band’s first album.

In response to the VU’s claims, the Foundation gave a covenant that it would not sue the band for copyright infringement, which had the effect, in the mind of Nathan J of the Southern District of New York, of eliminating any actual controversy between the parties over the banana design and depriving her of jurisdiction to enter a declaratory judgment in favour of the VU: The Velvet Underground v The Andy Warhol Foundation for the Visual Arts Inc (SDNY, 9 September 2012). The band’s assertion that it had continuing infringement claims was merely the expression of ‘an intangible worry, unanchored in time’, insufficient to support actual or imminent injury and thus unjusticiable.

The Foundation struck back a few days later with a claim against the VU for trade-mark, rather than copyright, infringement.