Rex Features supplied the still, Lowe Lintas supplied the ad and Smirnoff enjoyed the end product by way of an ad for Smirnoff spicy vodka which ran in 1999.
Topic: Photographs
Who: Alberto Korda, Che Guevara, Smirnoff
When: September 2000
Where: UK
What happened:
Rex Features supplied the still, Lowe Lintas supplied the humorous treatment and Smirnoff enjoyed the end product by way of an ad for Smirnoff spicy vodka which ran in 1999. Until photographer Alexander Korda popped up and claimed infringement of his copyright and moral right. The photo was the classic cult image of Guevara (overlaid in the ad by a hammer and sickle in which the sickle was replaced with a chilli pepper), snapped at a memorial service in Cuba in 1960 whilst Korda was working for a Havana newspaper. Hitherto apparently happy for the image to be used worldwide on students’ bedroom walls without a penny in royalties, Korda changed his tune when it came to "trivialising" commercial usage. Proceedings were issued, but before trial the case was "settled amicably" on terms which declared Korda the copyright owner and provided him with a "substantial" payment, all profits from which Korda will donate to Cuban children's charities.
Why this matters:
Had the case gone to trial, Korda would have had to prove he owned the copyright in the photograph. The task may not have been a complete breeze given the need to establish the position under Cuban copyright law in 1960, the possibility of a claim to the copyright by the newspaper for which Korda took the photograph, and questions as to Korda's ability to sue in the UK courts under international copyright conventions.
Having got over these hurdles, Korda would then have had to defeat a potential Rex/Lowe Lintas defence of laches. In other words an argument that, by not allegedly extracting royalty payments from all users for 40 years, Korda had lost the right to enforce his ownership rights now.
Assuming success on all these points, proving infringement of copyright (by reproducing the whole or a substantial part) and moral right (by subjecting the photograph to 'derogatory treatment') would probably have been relatively straight forward, and Lowe Lintas and Rex (and their insurers) would doubtless have had the cost of "m'learned friends" jousting over these issues for many days in court very much in mind before they settled. In conclusion, a case where some might have thought that "public domain" applied, but which underlines the dangers of relying on a defence which only reliably applies to cases where the copyright is time expired and which in this case, under UK law at least, would have been 70 years after Korda's death.
