[NYTr] Korda's Che Portrait Used to illustrate US Copyright Law Date: Thu, 9 Aug 2007 15:26:01 -0400 Via NY Transfer News Collective * All the News that Doesn't Fit [This barely literate article is only of interest because the fools are using Korda's portrait of Che as an example. It sounds like it was written by an eighth grader. And who's to say the star on Che's beret was red? Certainly not the youngster who scribbled this. The picture is in black and white. -NYTr] sent by MichaelP (activ-l) Internet Law & E-Commerce Law Database http://www.ibls.com/internet_law_news_portal_view.aspx?s=articles&id=CAA7BBF7-AF65-44AD-B86C-E95889383BF8 INTERNET LAW - PHOTOGRAPHIC COPYRIGHT LAW AS ILLUSTRATED BY CHE GUEVERA It is considered the most popular picture in the history [of] photography, the iconic shot of the romantic bearded guerilla rebel, with dark curly hair under a black beret with red star, looking sternly off into the distance. Of course the photo is that of the Argentinean Marxist Che Guevara. With its fascinating history, this photo can also help to understand the copyright law of images. To better understand the topic of Copyright on Photographs, these questions will be answered: What is the Story Behind the Che Guevara Photograph?; What is General Copyright Law on Photographs?; What are the Copyright Issues for People, Places and Things Photographed?; What is Fair Use?, What are Moral Rights?; What Lawsuits Resulted From Guevara's Picture? It is considered the most popular picture in the history of photography, the iconic shot of the romantic bearded guerilla rebel, with dark curly hair under a black beret with red star, looking sternly off into the distance. Of course the photo is that of the Argentinean Marxist Che Guevara, and this shot has been copied, reproduced, placed on t-shirts, cropped, blown-up, colorized, centered on posters, shrunk, spoofed, warped, placed on every conceivable marketable item and even redone by legendary Andy Warhol. With its fascinating history, this photo can also help to understand the copyright law on images. This photograph was taken by the Cuban state photographer, Korda, who [counted] President Fidel Castro as a close, personal friend and who used to get drunk with American writer Ernest "Pappa" [sic] Hemingway during the latter's Cuban period. Towards the end of his life Korda became angry at some of the uses advertisers were putting to his famed snap, so he sued two companies in the U.K., under copyright infraction. His family controls the Intellectual Property Rights to this masterpiece. WHAT IS THE STORY BEHIND THE CHE GUEVARA PHOTOGRAPH? The man who snapped Che's famous picture was a Cuban state photographer named Alberto Diaz Gutierrez (aka "Korda"). On March 4, 1960, the French freighter, La Coubre, exploded in the Havana harbour, supposedly by CIA sabotage, killing 100 people. The next day, Fidel Castro and Che Guevara linked arms to head the funeral procession. At the cemetery, while Castro gave a fiery defense of the Revolution, the 32-year-old Korda took a single photograph of Che Guevara. The picture sat for seven years in Korda's collection, until Che's death in Bolivia on October 9, 1967, executed at the hands of the Bolivian army [sic... with CIA assistance and encouragement]. The print was then cropped by a friend of Korda's, an Italian poster publisher to bring focus on the Argentinean-born martyr. Overnight, the shot became a 1960's symbol for worldwide student revolt. A million posters alone were sold of the print. WHAT IS GENERAL COPYRIGHT LAW ON PHOTOGRAPHS? There are two basic aspects about photograph copyright to remember when trying to understand the general law, being: Who took the photograph; and What the subject of the photograph is. PHOTOGRAPHER: The law here is fairly straight forward. The photographer is the owner of the copyright, almost invariably, of any normal picture taken, unless it was a commissioned or job-related work. The copyright for a photograph lasts 70 years in the U.S., even after the death of the author. Any use of the image, save for "fair use" exceptions is illegal, unless licensed or compensated. As soon as the photographer takes the picture and puts it in set form, standard copyright laws apply. The taking of the photograph, in and of itself creates the copyright, although the best way to protect a valuable still will include express validation, which for instance in America would mean sending a copy of the photo with the proper forms to the Library of Congress, along with a $45 payment to "Register of Copyrights." SUBJECT: The subject of the photograph has a lot more potential for copyright issues to emerge, and there are many things to keep in mind. Mainly, a photographer needs to ask themselves if what they are shooting is already copyright protected, and then consider whether -- if shooting a person -- what will be done with the picture, especially if it is someone famous. COMMISSIONED WORKS: A commissioned work is done for one's employers, or for hire. If taking photos is done for one's employer, the owner is typically the company. If done for hire, the details of ownership are left inside the four corners of the contract; although it is typical the photographer still owns the image. In the U.S., unless the contract states otherwise, the person who took the shot is the owner, by default. WHAT ARE THE COPYRIGHT ISSUES FOR PEOPLE, PLACES & THINGS PHOTOGRAPHED? There are three general categories of things photographed, which can occur alone or all mixed in the same shot. First are pictures of people, second snaps of items created, and third, photos of everything else. PEOPLE: You can take pictures of persons but how you use the picture then dictates how copyright affects the photographer and the subject's rights. There is generally a right of editorial use of people's photos. For instance, if you are writing a story about beach activities, taking and publishing a still of people windsurfing would be in the general intent of the law, and you would not need special permission from the subjects to publish such a picture. Conversely, everyone -- the famous, infamous and anonymous -- all have a right to the Intellectual Property Rights of their photograph and inherent copyright ownership as to how it would be specifically used, or blocked from use. While most people instinctively understand celebrities have such rights, undoubtedly from very public cases going to court, each person has the same exact rights to decide how their image will be used and by whom. For example, the actor Tom Cruise might agree to license his photograph for use in a Rolex watch ad campaign, but not to have it placed on the label of tranquilizers. COPYRIGHTED THINGS: Whenever a picture is taken, if the photo will be used in a professional setting or for advertisement, it is important the photographer check the picture for items already copyrighted, because they do not have the right to use these, even if incidentally part of the picture. There are literally millions of such items, whether a car or soda brand, and a piece of art. The list of things covered, includes: 1. Literary works, books, etc.; 2. Artistic works, paintings, etc.; 3. Photographic works; 4. Maps, technical drawings, etc.; 5. Advertisements; 6. Motion pictures; 7. Dramatic works; and 8. Works of applied art, jewelry, etc. If any of these items are deemed necessary for your shoot, then the thing to do is call or write and ask for permission (ideally written), and pay for licensing, if need be. This will ameliorate later legal problems, unless the picture is used outside the agreement. For example, the actor Tom Cruise might agree to license his photograph for use in a Rolex watch ad campaign, but not stuck placed on the label of mental health medications. WHAT IS FAIR USE?, WHAT ARE MORAL RIGHTS? Fair Use is a doctrine that allows a limited amount of sampling of a copyrighted work in another work, or in certain circumstances. How much is allowed to be used? This is an interesting question. The U.S. Copyright Office has no official set standard, but says, "There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances." MORAL RIGHTS: 17 USC Sec. 106A of U.S. Copyright law covers this. This rule is essentially meant to preserve the connection between the creating artist and his works. This means the artist can insist her or his name appears on the art, somewhere. Also, it allows the artist to have an injunctive and at times pecuniary remedy for the art being used outside the artist's conception. For example, if the musician and songwriter Bob Dylan sued a movie company for its plans to use one of his tunes for a pro-war movie, on the theory that it was against the spirit of the work -- despite the fact that a publishing house now owned the rights, he might still be able to win using a Moral Rights argument. WHAT LAWSUITS RESULTED FROM GUEVARAZ'S [sic!] PICTURE? Probably the greatest irony about the Che' photo, given it's [sic] unsurpassed popularity, is that Korda never received a penny from the use of the image, despite hundreds of millions of copies being made of it. In the spirit of the Revolution, he allowed it to be used by those identified with the revolutionary and non-materialistic spirit of upheaval that dominated much '60's thinking. When asked, Korda said, "I just had 25 seconds to take that photograph, then Che disappeared. And there's no copyright control of photos in Cuba." Of course, had he wanted, Korda could have attempted to have the work copyrighted elsewhere. Things changed when Korda grew incensed and disgusted that Che was being used to sell things, even those he didn't espouse, such as alcohol, given the fact Guevara was a teetotaler. In KORDA VS SMIRNOFF, in 2001 Korda won a copyright infringement suit after the London advertising agency Lowe Lintas used Che's likeness in a Smirnoff vodka advertising campaign. Razi Mireskandari, the London lawyer who filed the copyright case, said,"We felt there were so many people you could take action against that we had to start somewhere." Korda gave the $70,000 award to Cuban children's health care. Korda has since died, but his children are now carrying the fight forward. One of the most intriguing aspects of this subject is that Korda never tried to copyright the image before the Smirnoff fight, and some lawyers would have argued that the image was so well-entrenched in the public domain for 30 years that it was no longer copyright-able. Yet, Korda persevered because he argued Moral Rights were at issue and refused to admit defeat before the case was tried. * ================================================================= .NY Transfer News Collective * A Service of Blythe Systems . Since 1985 - Information for the Rest of Us . .339 Lafayette St., New York, NY 10012 http://www.blythe.org . List Archives: https://blythe-systems.com/pipermail/nytr/ . Subscribe: https://blythe-systems.com/mailman/listinfo/nytr =================================================================