The Velvet Underground & Nico - Album Cover - Front Cover Lawsuit - Copyright Claim

Copyright Claim

Alleging that the Foundation had earlier claimed it "may" own the design's copyright, the partnership asked the court for a declaratory judgment that the Foundation did not have such rights. In response, the Foundation gave the partnership a "Covenant Not to Sue" — a written and binding promise that, even if the partnership and certain other parties continued to use the design commercially, the Foundation would never invoke its professed copyright ownership against them in court. On the Foundation's motion, Judge Alison J. Nathan severed and dismissed from the lawsuit the partnership's copyright claim. According to Judge Nathan, the Constitution allows federal courts to decide only "Cases" or "Controversies," which means ongoing or imminent disputes over legal rights, involving concrete facts and specific acts, that require court intervention in order to shield the plaintiff from harm or interference with its rights. The judge held that the partnership's complaint fell short of that standard because even if the Foundation continued to claim ownership of the design's copyright — and even if its claim was invalid — that claim would not legally harm the partnership or prevent it from making its own lawful uses of the design. The partnership did not claim that it owned the design's copyright, only that the Foundation did not. Since, according to the court, the Foundation promised not to sue the partnership for any "potentially copyright-infringing uses of the Banana Design," the partnership could continue using the design and there would be no legal action that the Foundation could take (under copyright law) to stop it. And if, the court concluded, the partnership could continue with business as usual (as far as copyright was concerned) regardless of whether the Foundation actually owned the design's copyright, a court decision would have no practical consequences for the partnership; it would be a purely academic (or "advisory") opinion, which federal courts may not issue. The court therefore dismissed the partnership's request that it resolve whether the Foundation owned the design's copyright.