Following a bust-up with Smirnoff Vodka, those controlling the rights in an iconic photo of Ché Guevara have recently turned their attentions to advertising in France.
Who: Diana Diaz-Lopez and Reporters Without Borders
When: February 2004
It all started on 5 March 1960. It was on that day that Che' Guevara was photographed at a funeral in Havana by photographer Alberto Diaz-Gutierrez, known as "Korda." After Che's death, the image quickly achieved world icon status, and it is now believed to be the most widely reproduced image in the history of photography.
For all this, the image never generated a penny in royalties for Korda, although he asserted his rights on at least one occasion, in an advertising context. This was when Smirnoff Vodka used the image to show the heroic looking Che', with the hammer and sickle replaced by an image using vodka bottles and red peppers. That case did not go to litigation, but in this most recent development involving the famous image, advertising was again the cause of the problem, and this time it did go to court.
The story started in June 2003, when press freedom organisation Reporters Without Borders ("RWB") launched a poster campaign in France to dissuade tourists from visiting Cuba. The poster used the famous Korda image, grafting it onto a picture of a French riot squad officer beating up a protester. The headline was "Cuba: the world's biggest prison for journalists."
No permission had been sought for use of the photograph, and with Korda dead, his daughter, Diana Diaz-Lopez, also head of the Havana Ballet, took up the cudgels on his behalf, having been bequeathed the copyright.
On 9 July 2003, the French court awarded Ms Diaz-Lopez €2,000 damages. It also warned RWB that if it wanted to distribute any further posters following the judgement, it would have to pay €200 per poster for the privilege.
Nothing further happened then, but in December Ms Diaz-Lopez's lawyers saw a copy of the infamous RWB poster on the wall of the office of the RWB chairman, Robert Menard. The poster was spotted whilst Menard was giving an interview on TV, sitting in his office, on an entirely unrelated topic.
Diaz-Lopez's lawyers moved quickly. The next day, French police searched RWB's premises and seized a number of the offending posters and cards.
Diaz-Lopez's lawyers then deducted the number of posters found in the office from the total printed and thereby deduced that 6,000 must have been illegally distributed.
If the court upholds the Diaz-Lopez claim, the payout will be £760,000 in damages, which could bankrupt RWB.
Why this matters:
RWB claim that Ms Diaz-Lopez is being used by Fidel Castro in a desperate attempt to bankrupt RWB. However, the fact remains that the image is a copyright work which is still very much in copyright (lasting for the life of the creator plus 70 years) and if there is unauthorised reproduction, that copyright will be infringed and the penalty has to be paid. All advertisers or marketers thinking of using the famous image or any other third party image for that matter, would do well to take note.