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Copyrighting Che

In 1968, shortly after Che Guevara’s death, Irish artist Jim Fitzpatrick published an image of Che. Fitzpatrick allowed other revolutionary groups to use the image, free of copyright assertions.

Today, it is not uncommon for American teenagers to have T-Shirts and posters bearing this image. Are these Western teens supporters of Che’s communist ideas? Probably not. Do they know that the image has become the symbol for revolutionary groups in Colombia and Mexico? Um, does it matter if they don’t? It seems that the image of Che has come to stand for something of its own in our pop culture.

However, the Independent reports that Fitzpatrick has “decided it is time to prevent it being used for ‘crass commercial purposes’.” In an attempt to take back control, Fitzpatrick has applied for documentation to prove his ownership of the copyright of the image. If he is successful, he plans to transfer copyright to Guevara’s relatives.

His probability of success is limited by the fact that the image is actually based on a photograph taken by Alberto Korda. Clancco makes an interesting comparison of Fitzpatrick with Shepard Fairey.

Do such pop-art reproductions of photographs taken for newspapers constitute copyright infringement? Do they involve sufficient transformation to avoid infringement and merit copyright protection? Furthermore, once an artist has allowed his work to be circulated, how can he later attempt to assert copyright?

Read the article at the Independent