Focus on this artwork and explore the Copyright status.
For decades the famous image was unhindered by international copyright agreements, because Cuba was not a signatory to the Berne Convention. Fidel Castro described it as a "bourgeois concept" which meant that artists and advertisers were free to use Korda's work as they pleased. Legally, Cuban Law no. 156 signed on September 28, 1994, to amend part of Law no. 14 of the 1977 Copyright Act (Article 47), states that pictures taken in Cuba fall into the public domain worldwide, 25 years after their first use. As for the United States, since the image was first published in Cuba without compliance with U.S. copyright formalities and used in Cuba before February 20, 1972 (more than 25 years before Cuba signed the Berne Convention in 1997) it is also generally, although not universally, considered to be in the public domain.
Despite conflicting claims about whether or not the image could have copyright established, Korda's children have sought to control commercial use of the image from defamation. Korda's daughter Diana Diaz pursued a 2003 lawsuit in France against a Paris-based press rights group Reporters Without Borders, for using the Che photograph in a poster campaign decrying Cuba as "the world's largest jail", aimed at dissuading French tourists from vacationing in Cuba after the jailing of 29 dissident journalists. In suing the group for 1.14 million euros, Diaz's lawyer, Randy Yaloz remarked that "we are going after everyone who betrays the moral rights of my client". Moral rights are a separate component of copyright law that are not recognized in the U.S., but are recognized in some other countries, notably in France where Diaz filed the lawsuit. Moral rights aim to protect the integrity of a work from defamation, distortion, slander, or offensive mutilation, even if the originator no longer owns the copyright. However, Reporters Without Borders stopped using the image before any legal judgment was rendered.Ariana Hernández-Reguant addressed the image's copyright status in 2004 in her article Copyrighting Che: Art and Authorship under Cuban Late Socialism. She expressed a skeptical view towards Korda's heirs being able to establish ownership over the image, noting in reference to the lawsuits involving the image, "There was never any official ruling on whether the depiction constituted a violation of copyright." The author goes on to state that: "Korda took the picture while working for a state-run newspaper, his actual property rights would be questionable under both Cuban and international law."In 2007, law student Sarah Levy also addressed the potential legal status of the image in Cuba. It was her ultimate contention that "in Cuba the copyright protection in Korda's Guevara photograph would have already expired, and despite the claims of ownership from Korda's heirs, the State would now hold any rights associated with the photograph." In regards to the more commonly disseminated stylized version of the photograph, lawyers say it will be an uphill struggle to deter non-photographic use of such a widely reproduced image, other than in countries like Italy where laws protect image rights.Guevara's heirs also believe they have legal justification to prevent the image's "exploitation" or slander. Guevara's Cuban widow Aleida March stated in 2005 that "We have a plan to deal with the misuse. We can't attack everyone with lances like Don Quixote, but we can try to maintain the ethics of Guevara's legacy." In reference to this pronouncement, Guevara's daughter Aleida Guevara told Reuters, "It will be costly and difficult because each country has different laws, but a limit has to be drawn."
defamation Berne Convention Fidel Castro copyright formalities euros copyright law slander right Reuters moral rights public domain photograph bourgeois international copyright agreements Moral rights Cuba Aleida Guevara Aleida March Reporters Without Borders