# Che Guevara Lisence/Copywrite - cleared up once and for all.



## johnnyhavana (Mar 25, 2008)

I wanted to inform anyone thinking of producing their own Che Guevara merchandise of the REAL information, compared to what is floating around out their.

Please be aware that in 2001, Alberto Korda died and his estate took over his images including the image taken of Che called “Herico” which is the image you’ve seen reproduced since the 1960’s.

Che Guevara himself is not a license, but the Korda image of Che is and IS NOT a public domain image, the legalities are, not until 50 years AFTER the death of the artist, does this become public domain. So in 2051 you can print all the Che you want !

If you do decide to print up a (Korda) Che shirt and get caught and are sent a cease and desist letter, you are best to just stop selling your Che merchandise. This has been contested in court in Europe (where the Korda estate is managed) as well as in the USA. And in all cases the Korda family won and won big. You see to start off with this all takes place in France, so you’re dealing with Euros and would have to fight it in French with legal council you would have to hire in France, plus all other costs involved.

They are not interested in the little guys who make up a couple dozen, but if you get caught and want to fight, then expect your site to get shut down as they contact your sever and ISP and threaten to shut them down, so instead they shut down your site.
Ya that can and does happen, just like if you spam !!!

Now when Korda was alive, he did not really care that people made Che T-shirts or whatever and never stopped anyone. He was all for keeping that great image of Che alive so you saw it everywhere, accept for companies that used the image to promote alcohol or other items that Che and Korda didn’t like. 
Example, a British beer manufacturer made a “Revolutionary” beer using the image, Che did not drink and they sued and won. Smirnoff Vodka did the same and again Korda won that suit. All proceeds went to a charity and the Che image was not used for anything similar. This may be why most think its public domain as T-shirts and posters have been printed for 50 years using this image.

After Korda died however, his family took over and it is now a licensed image worldwide, just like the Simpson’s or the Rolling Stones. That image is protected world wide, including on eBay and Google stores etc. for any type of product you can think of. If you buy transfers from other companies or Che shirts from other companies where your were aware or not, you will still get busted. They will most likely just want the manufacturer however and not the little guy, but be aware this image is most bootlegged out there and they are going after everyone.

We know all of this because we went through it all, we manufactured Che shirts from the 1990’s and in 2001 when it became a license we were sued and went through the whole ordeal. In the end we had and still have the largest Che Guevara site online www.theCHEstore.com and only sell licensed merchandise. No political affiliations what so ever, we just sell T-shirts, so if you have a problem with us selling Che Shirts, too bad!

With all that being said, we are only talking about the Korda image of Che, you can see which one I am talking about here - http://en.wikipedia.org/wiki/Che_Guevara
There are other Che images out their, thousands of them which do not have a license on them ( I think ?), but they do not sell, trust us we know what we are talking about, but you can for the most part print those up and make your own shirts. 

One other thing, if you take Korda’s image and manipulate it in Photoshop or paint it or whatever, it’s still originally Korda’s image and an infringement of copyright. Regardless of what you think, if for Ex. you put Obama’s face (or anyone else's) in place of Che’s face and leave the beret and star and hair, its still an infringement. If you go beyond that where it doesn’t look like Korda’s image anymore, then you might be ok ?? But you take the chance.
If you take the Nike Swoosh for example and put in a plaid pattern or tweak the shape slightly, its still Nike and your gona get busted!

Also if you are a T-shirt printer and someone comes in wanting to print up these Che shirts, you are just as guilty as they are and if your customer gets caught and gives you up for printing them, then your involved and just in as much trouble.

Just my two cents, if any questions or comments, please let me know
JH


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## charles95405 (Feb 1, 2007)

Very good post!


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## wormil (Jan 7, 2008)

Wikipedia seems to refute everything you wrote. 

Guerrillero Heroico - Wikipedia, the free encyclopedia

The main issues are:
The photo was taken in Cuba while Korda was working for a state newspaper. Cuban copyright laws are different than the US and the Cuban copyright has expired. Korda himself never demonstrated a legal copyright to the image.

You mention being sued but not the outcome. Did you fight and lose or did you simply settle out of court and choose to pay a license fee?


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## johnnyhavana (Mar 25, 2008)

I settled and paid a penalty based on my sales at that time. Many other vendors who had a few items on line just stopped selling and the boogy man stopped bothering them. 
The current licensed rights are out of France from where Korda lived as does his family, not Cuba. Either way if you want to fight it you will loose. One or 2 americans have and lost as well as a few others world wide, in europe and Asia. Its an ongoing battle.

The License fee is a completely different matter which we paid to be the North American apparel licensee legally and exclusively. The C&D papers originated from Cuban courts, then to French Courts going way back.


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## wormil (Jan 7, 2008)

Why would I "fight and lose" and please point me to one example where someone has fought and lost over copyright (not settled). Actually point me to any court case where the family has been awarded copyright.


edit: I don't mean to badger you. I understand that for practical reasons it was probably cheaper to pay the license fee than to wage a court battle. It's just this type of thing really annoys me and is yet more proof that we have gone la-la over copyrights.


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## MotoskinGraphix (Apr 28, 2006)

Arent most of the images based off of the drawing of Che by Irish artist Jim Fitzpatrick, influenced by the Korda photo?


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## dschiffty (Mar 29, 2010)

Is there anything legally wrong with printing a shirt with the image modified in photoshop for one's own personal use?

Alternatively, is it legal to print if I'm not selling it or making any profit (just distributing it to a group of friends)?


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## kimura-mma (Jul 26, 2008)

Modifying the image in photoshop may or may not lessen your chances of infringing on the original photo. It's hard to tell without seeing what you plan on doing.

To my knowledge, there is nothing that describes how to legally use someone else's intellectual property, other than officially obtaining license or permission from the IP owner.

While it may still be considered infringement to reproduce copyrighted material, if you were just producing one for yourself, you would probably be ok. But once you start distributing more, even just to friends, you start increasing your chances of having problems.

Bottom line is, you are potentially using someone else's intellectual property. Any way you look at it, you are taking a risk to be sued.


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## sweasel (Mar 29, 2010)

Illustrators have worked from other people's photos since forever. We used to spend hours keeping filing cabinets worth of cut up magazine photos, filed so we could find subjects as needed. The safe goal was to make the final illustration so different, you could put it side-by-side with the photograph and not tell there was a relationship.

But there isn't any firm "how close is too close?" rule. There really couldn't be.


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## johnnyhavana (Mar 25, 2008)

MotoskinGraphix said:


> Arent most of the images based off of the drawing of Che by Irish artist Jim Fitzpatrick, influenced by the Korda photo?


Actually Fitzpatrick's illustration is based on the Korda photograph and thats where manipulation of an original image is still copyright infringement. It really depends on how much you change it.


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## johnnyhavana (Mar 25, 2008)

dschiffty said:


> Is there anything legally wrong with printing a shirt with the image modified in photoshop for one's own personal use?
> 
> Alternatively, is it legal to print if I'm not selling it or making any profit (just distributing it to a group of friends)?


You are correct in this assumption, if you make up a few for yourself, that is fine, if you sell them then thats where you have crossed the line and infringement kicks in. 

I would think that making them for yourself is still infringement, but since its a couple and its for yourself, its not a big deal.


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## aminkarim (Mar 30, 2010)

what is good che is something which no one holds a right off. Now here is a legal loop whole. The copyright exitis in the acutal image which Korda took which holds a copyright. Now if there is a look like person of she and you take a similar image THEN THAT IS YOUR OWN COPYRIGHT - if you create a one colour design of that photo which you took then LEGALLY no one can do anything - since in COPY RIGHT law the actual photo holds a copyright not the DISPLAY within an image


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## kimura-mma (Jul 26, 2008)

aminkarim said:


> if you create a one colour design of that photo which you took then LEGALLY no one can do anything


It's not exactly that simple. In fact, I would view this as a slippery slope, at best.

Since there are debates regarding Che in particular, I'll use someone else - Derek Jeter - as an example.

If I took a photo of a Derek Jeter look-a-like and printed and sold shirts with his likeness, I'm sure I'll get a letter from Major League Baseball and the New York Yankees. I can tell them it's a look-a-like, but if they choose to pursue legal action, they can. I can go to court, bring the look-a-like and prove my case, but it's going to cost me quite a bit in legal fees to do so. And maybe I will win, but maybe the court still decides I created confusion in the marketplace and shuts me down. So it's not an automatic win, and even a win will still be an expensive win.



aminkarim said:


> since in COPY RIGHT law the actual photo holds a copyright not the DISPLAY within an image


The content of the image may not hold copyright, but it does hold trademarks and right of publicity.


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## aminkarim (Mar 30, 2010)

anything that is not fixed will not hold any copyright. For TM it will be hard to get for this image.

And also for TM please refer to the case law for Arsenal v the t-shirt trader - this is in reference to EU IP laws.

So there are many ways to get round this. People should not be worried about getting letters from solicitors. I have been to court and won on an IP case. Lower court Judges will always throw the case out its when you appeal to high courts that the Judges are more experienced and aware of IP law in practical sense.


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## kimura-mma (Jul 26, 2008)

aminkarim said:


> For TM it will be hard to get for this image.


I wasn't referring to TM'ing this image. I was just referring to the fact that just because you take a photo doesn't make it free and clear to use. The content of the image still matters if it includes TM's or a person's likeness.



aminkarim said:


> this is in reference to EU IP laws.


I'm sure there are many differences between US and EU IP laws. I'm obviously not familiar with EU laws.



aminkarim said:


> So there are many ways to get round this.


Yes, I'm sure there are. But the general stance here on the forum is that people should not be encouraged to find loopholes to break laws and infringe on intellectual property. If people choose to do so, so be it. But IMO, it's not appropriate to discuss it on a public forum. Instead, people should be encouraged to be original and creative.



aminkarim said:


> People should not be worried about getting letters from solicitors.


Not solicitors, but attorneys of the IP owners. And yes, they should be worried about it. If anyone is entering a business where they are potentially infringing on IP, then they should fully understand what they are doing and know the risks involved, and then make an educated decision on whether or not to take those risks.



aminkarim said:


> I have been to court and won on an IP case. Lower court Judges will always throw the case out its when you appeal to high courts that the Judges are more experienced and aware of IP law in practical sense.


If you have been involved in IP cases, then that is valuable experience to be shared on the forum. But it's probably not wise to give loophole advice on how to possibly avoid infringement lawsuits. Laws are not the same in every country, and it would be unfortunate for someone to follow advice that potentially gets them sued.


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## SHIROINEKO (Mar 31, 2010)

Thanks for the info dude.


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## johnnyhavana (Mar 25, 2008)

aminkarim said:


> anything that is not fixed will not hold any copyright. For TM it will be hard to get for this image.
> 
> And also for TM please refer to the case law for Arsenal v the t-shirt trader - this is in reference to EU IP laws.
> 
> So there are many ways to get round this. People should not be worried about getting letters from solicitors. I have been to court and won on an IP case. Lower court Judges will always throw the case out its when you appeal to high courts that the Judges are more experienced and aware of IP law in practical sense.


 
You are free to do what you want and try that slippery slope, but REALLY, you can't find another image to print, is it really worth it. Just move on.


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## Drafter (Jun 29, 2010)

so what about the other pictures? sorry to rehash this, but i don't particularly care to use the famous shot, i'd like to use other shots..

can i?


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## kimura-mma (Jul 26, 2008)

All pictures are copyrighted by the photographer. So you would need a license from the photographer to use any photo, otherwise it is infringement. You also need permission from Che Guevara's estate to use his name or likeness, otherwise it infringes on his right of publicity. But he's not American so I don't know how those rights work. It's probably best to consult an attorney.


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## grittycereal (Jul 10, 2010)

Che Guevara was a communist. So much for a revolution. I'm glad he was shot.


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## BroJames (Jul 8, 2008)

aminkarim said:


> what is good che is something which no one holds a right off. Now here is a legal loop whole. The copyright exitis in the acutal image which Korda took which holds a copyright. Now if there is a look like person of she and you take a similar image THEN THAT IS YOUR OWN COPYRIGHT - if you create a one colour design of that photo which you took then LEGALLY no one can do anything - since in COPY RIGHT law the actual photo holds a copyright not the DISPLAY within an image



While your argument lies on the "similar" picture being taken "LEGALLY", and printing a design derived from that 'LEGALLY" taken picture, I think a strong similarity will be enough to get you into trouble.The kind of trouble that does not exactly say you will lose or that you are wrong but the kind that will bring you to court to fight for your right(or defend yourself).

The legal battle is always a tricky and expensive battle to fight. Unless you have the resources and what you are fighting for justifies it, one is best adviced to avoid a legal battle.

In college, we were told a true story of a US archibishop whose picture was used in an alcohol print ad. The archbishop brought the case to court with the argument that his reputation is beyond reproach, which he established, yet lost the case. The ruling is that since the bishop's character is beyond reproach nobody would have believed that he drinks alcohol. Therefore, the ad could not have besmirched his reputation. I am not really sure if the case also includes copyright violations for the use of his picture without permission though. This is not a good example on copyright cases and is not meant to be. Only trying to point out that anything can happen in a legal battle and it is best to avoid them - unless what you are(or will be) fighting for is worth the time and money.


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## johnnyhavana (Mar 25, 2008)

Most of the other Che images, as long as they weren't shot by Korda are also licensed, but nothing will happen as they are represented in Cuba, So if you took another Che image and used it ( again not Korda's image ) you should be fine, but just be aware there is always a possibility!




johnnyhavana said:


> You are free to do what you want and try that slippery slope, but REALLY, you can't find another image to print, is it really worth it. Just move on.


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## johnnyhavana (Mar 25, 2008)

the Guevara Family does not really get involved, so you don't really need thier permission, but you are bang on that you need to credit and pay the photog, to cover your *** !



kimura-mma said:


> All pictures are copyrighted by the photographer. So you would need a license from the photographer to use any photo, otherwise it is infringement. You also need permission from Che Guevara's estate to use his name or likeness, otherwise it infringes on his right of publicity. But he's not American so I don't know how those rights work. It's probably best to consult an attorney.


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