Good Morning Inmates! It’s Thursday, which means your Favourite Lawyer is back again.

The following IP thread tells a story of one of the most iconic photos ever taken and the Copyright issues that surround it.

The first star of our show today is Ernesto “Che” Guevara. Born in 1928 in Argentina, Che began his professional career as a physician working in various countries in South America.

Whilst traveling throughout the continent as a doctor, Che met and treated a lot of people in poor communities which saddened him greatly. He felt the poverty, disease and hunger he encountered was due to US imperialism in South America. That made him want to help the poor.

He immediately got thinking and sought about getting involved in politics. He started out with pushing social reforms in guatemala and thereafter, his political aspirations only grew.

In 1955, whilst working in a hospitin Mexico City, Che met the second star of our story today, Fidel Castro. After a long discussion with Castro, Che joined his movement, which sought to overthrow Cuban dictator Fulgencio Batista. Che had finally found a cause worth fighting for.

Castro appointed Che to be his second in command. He got military training and through his guerilla warfare, Che became one of the most feared but popular men in the Cuban revolution.

On the 1st of January 1959, whilst the world was celebrating a new year, Che and his troops took control of the capital Havana, overthrowing Batista. Batista chartered a plane and left Cuba immediately. The Cuban revolution was complete.

Castro arrived in Havana a few days later and was appointed Prime Minister of Cuba. One of his first actions was to give Che Cuban citizenship and a position in government. I mean, he went to war for the man, least he can do is make him a citizen right

Over the years, Che grew to become a revolutionary statesman. His charismatic personality meant he was loved by all socialists, communists and African liberation movements. However, he was despised by the US government.

Throughout most of the 1960s, Che travelled to different parts of the world teaching guerilla tactics to rebels and fighting in revolutionary movements. One such example is when he spent a year assisting rebels in the Congo. He was loved by the African locals.

On the 8th of October 1967, Che was captured and arrested whilst leading a groupd of guerilla troops in Bolivia. Che had hoped to help the rebels overthrow the US aided Bolivian government. However, the CIA tracked him down and ultimately, he did not have enough support with him.

Che was taken to a hidden location, tortured and then murdered. Thereafter, his body was put on public display for viewing. Many saw it as a “christ like visage” and even the Bolivian troops took a photo next to it. This only added to the legend of the man.

Che’s belongings were taken by the CIA (which they still keep on display to this day). His body was dismembered and his arms were sent to Argentina and then Cuba for identification. They did not disclose what they did with the rest of his body.

Castro confirmed that Che was dead and declared 3 days of national mourning, his death led to protest and anger worldwide. Castro also requested that a suitable photo be used for Che’s memorial. Which brings us to the 3rd star of our story.....

Meet Alberto Korda
. Born in 1928, Korda was a Cuban photographer and a master of black/white photography. He was initially interested in fashion, however, he was captivated by Castro and the Cuban revolution and started taking pictures of that instead.

Korda said he initially got into photography for one very important reason....to meet women.

Sidenote: Do all photographers move like this?

In March 1960, at a rally, Korda took this now famous photo of Che Guevara. He said he noticed Che’s piercing gaze into the distance and captured the moment. It became the most iconic photo from the revolution and it was later used for Che’s memorial.

After Che’s death, the ohoto was used on a large scale worldwide. Initially, it was used to protest his death but with time, it became a symbol for revolutionary movement worldwide. Any Pan-African nowadays is likely to have a pocture of Che as their avi at some point.

Its hard to explain but the photo just has THAT THING, you know what I mean. It ties it with the legend of Che. Many already thought he looked like Jesus and his strory, being a doctor turned saviour only added to the myth. It inspired many movements (coughs EFF) to wear berets.

However, with every ood thing, Capitalism gets involves. The photo was soon ised to sell merchandise all over the world. It was reproduced onto many clothing items (my sister had a cap wayy back). Every revolutionary copied Che’s style and every “edgy” person thought it was cool.

There was obviously a lot wrong with this from a legal standpoint. As a general rule, Photographs, once taken, are the copyrighted work owned by the person who takes the photo. In this case, Alberto Korda. So ordinarily, he would have been able to get millions in royalties.

There was one big problem, Fidel Castro didn’t believe in Intellectual Property. He gelt it was a strange product of capitalism. In addition, he was against the commercialisation of the image of Che. He was just happy that he was getting the recognition he deserved.

Some of you may know about the Berne Convention. It basically says that if you create a copyrighted work, you can enforce your rights against people in other countries that signed the agreement (almost every country signed it). Castro did not and Cuba was not part of the Berne.

As a result, more t-shirts were sold, money was made by fashion brands and over the years, Korda did not get any royalties. He maintained that he was happy with the popularity of the photo and didn’t want to make money (well, he couldn’t really go against Castro could he?)

Fast forward to the 1990s, Castro was now ready for Cuba to play with other kids. He signed the agreement to join the WTO in 1995 and then finally signed the Berne Convention in 1997(37 years after the photo was taken). So do you think would Korda start claiming royalties or nah?

3 years later, British alcohol manufacturer Smirnoff started selling a brand of spicy vodka with the photo of Che on the labeling. I mean, I don’t drink vodka but with that looks like a revolutionary drink .

Korda became aware of this and it was at this point where he felt a line had been crossed. He was okay with the photo being used to sell t-shirts but he did not want the legacy of Che exploited to sell alchol. Given that Che himself did not drink.

After 40 years and millions of merchandise sold, Korda finally decided to sue Smirnoff and the advertising company that came up with the idea for copyright infringement in the UK. The matter was settle for a substantial sum out of court. Korda was now able to get royalties.

Sadly, Alberto Korda passed away 8 months after this settlement in 2001. He was not able to fully exploit the photo as thousands of fashion brands did over he years. His daughter is securing the bag however, suing anyone using the photo without prior consent or paying royalties.

Castro was probably a slave to his own ideologies here. I do think his reluctance for anyone to take ownership of the photo in 1960 was a bad idea. It enabled anyone to exploit the photo and use it however they wanted to. He was against the commercialization of Che, however...

....not subscribing to the Berne Convention meant that anyone could commercially exploit it. That is what Castro wanted to avoid in the first place. For 40 years, Korda could do nothing about instances where he did not approve of the way it was used or make money from it.

Che is a global icon. Not only for the photo but for the role he played in the revolution. Arguably, the photo and his style (berett/cigar), is what makes the Cuban revolution marketable/cool. Now we can all buy the shirts and chill at Cubana with some knowledge of the man!

Big lesson: When you create something, be sure to take ownership of the copyright. You never truly know the earning potential your work until someone else does! Stay safe good people!!