The Legal Infrastructure of Business: Che Shirts

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Does the cost of that Wicker Park hipster?s Che t-shirt include a royalty?

Who owns the rights to this image?? ??

In 1968 Jim Fitzpatrick created the iconic portrait of Che Guevara based on the photo below
taken by Alberto Korda in 1960, Guerrillero Heroico (Heroic Guerrilla Fighter).

The Maryland Institute College of Art has called it the world?s most famous photo. According to the Victoria and Albert Museum, Fitzpatrick?s print has been the most widely reproduced in history. Then why haven?t either Fitzpatrick or Korda ever received royalties?

Alberto Korda was a lifelong supporter of the Cuban Revolution and never tried to collect royalties for his photograph, but in 2000 Korda sued Lowe Lintas and Rex Features, the advertising agency that used Korda?s photograph in a Smirnoff vodka commercial. The defendant claimed Guerrillero Heroico, 40 years old at the time, was in the public domain. Korda was awarded an out-of-court settlement
for $50,000, which he donated to Cuba?s healthcare system. Korda told reporters, "As a supporter of the ideals for which Che Guevara died, I am not averse to its reproduction by those who wish to propagate his memory and the cause of social justice throughout the world, but I am categorically against the exploitation of Che's image for the promotion of products such as alcohol, or for any purpose that denigrates the reputation of Che."

??????????? According to legal experts, Korda did not have much of a case. Since Cuba didn?t sign the Berne Convention until 1997, and since Korda took the photograph while working for the Cuban national
media, the photo is internationally recognized as public domain. On September 28, 1994, Cuban Law #156 was passed, stating that a picture taken within Cuba falls into the public domain 25 years after its first use. In the U.S. the picture is also considered public domain because it was first published without
compliance of U.S. copyright laws and was published in Cuba more than 25 years before Cuba?s 1997 signing of the Berne Convention. Since Korda had a weak copyright-infringement case, it appears Lowe Lintas and Rex Features (perhaps pressured by Smirnoff) settled the case to avoid bad publicity or to avoid a possible defamation suit. After Korda?s death, Korda?s children have taken action to control the commercial use of Guillermo Heroico from defamation, attempting to sue Reporters Without Borders in
2003 for 1.14million euros. The French press rights group was about to launch a poster campaign calling Cuba ?The world?s largest jail? in order to convince French tourists to stop vacationing in Cuba after Cuba arrested 29 dissident journalists. Reporters Without Borders, fearing its chances, canceled the poster campaign before the suit could commence.

??????????? Jim Fitzpatrick has had enough, and? finally submitted a copyright 50 years after creating the print. Like Korda, Fitzpatrick never tried to copyright his work because he wanted in to spread
freely around the world to ?promote Che?s ideals and increase awareness of the Cuban Revolution.?

Perhaps Fitzpatrick feared a lawsuit from Korda? According to legal precedents of famous artwork based on photographs considered separate works of art, Fitzpatrick need not worry. In fact, Fitzpatrick has been closely allied with Che?s widow and Korda?s children to protect Che from defamation. After
receiving the copyright 2008 Fitzpatrick traveled to Cuba and signed over the copyright of his print to the William Soler Pediatric Cardiology Hospital in Havana and gave the original print to Che?s widow. Why wait 50 years to seek a?copyright? According to Fitzpatrick, the commercial use has gotten out of hand.
In addition to the Smirnoff campaign, Fitzpatrick has seen enough of Lindsay?Lohan a Che shirt in Confessions of a Teenage Drama Queen and Liz Hurley wearing a Luis Vuitton purse decorated
with Che?s face.?

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http://digitaljournal.com/article/303818#ixzz28knBLlU3

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