The image has become at once iconic and ubiquitous: Ernesto “Che” Guevara, the Cuban guerrilla leader, relentless and determined, glancing out into the distance. Jim Fitzpatrick, an Irish artist, created this print in 1968 and allowed revolutionary groups throughout Europe to use the image copyright-free. The depiction that once was a symbol of progressive ideals, however, since has become a pop-culture money-maker, adorning key rings, T-shirts and even lingerie around the globe. And now Fitzpatrick hopes to establish full copyright ownership in the poster to stop its use for “crass commercial purposes.”
That very copyright protection may pose problems for Fitzpatrick as he goes through the legal process to get it: His work is based on Alberto Korda’s 1960 photograph of Che entitled “The Heroic Guerrilla.” If Fitzpatrick aims to win copyright protection for his rendition of the Argentine-born Marxist and compadre of Fidel Castro, he may have to employ a fair-use argument and show his art work is sufficiently “transformative” from Korda’s photograph. This may prove tricky but at least this case isn’t beset for now with the hostility between parties that marked՛ Shepard Fairey v. The Associated Press.
Indeed, Korda, like Fitzpatrick, expressed displeasure over the exploitation of the Che image. Before his death, Korda won a suit against a London advertising agency, which used the Che picture in a Smirnoff vodka campaign. Korda donated the damages he was awarded, estimated to be £ 30,000 or so, to Cuba’s health system for the purchase of medicines. If he gains possession of copyright over his depiction, Fitzpatrick — who is famed, too, for his Celtic artwork and album designs for the likes of Thin Lizzy and Sinead O’Connor — plans to transfer it to Che Guevara’s family in Cuba, he says: “I simply want to hand it over and give the family the rights to the image that I created and let them decide what to do with it… I have no problem seeing [the image] on mass numbers of T-shirts. I just don’t want someone to be making vast amounts of money from it when that money could be used for a children’s hospital in Havana.”