Saturday, September 30, 2023

Can Copyright Lawsuits Be Used to Protect Meaning?


Copyright Alberto Díaz “Korda”Gutiérrez. Photo taken in 1960.

I’ve written before on the interesting dynamic between artists who profess “free culture” ideologies and artists that champion the protection of their copyright and trademarks (What do artists want?). One thing I didn’t note in that article was how copyright may be used by artists as a way of protecting the context (and thus content) of their images and work.

This question has come up a few times recently, usually framed as such, “Do artists sue for copyright infringement when their work is being used in a way not consistent with the artist’s intent or, when the artist’s work is being used without permission regardless of context but generating revenue?” There are obviously many variations to this answer.  Although the First Amendment (free speech clause) in the U.S. guards against the refusal to allow the use of copyrighted work for certain reasons (criticism, commentary, newsworthy purpose), it is becoming more frequent for artists to sue other artists (and non-artists) when their copyrighted work is being used in a manner inconsistent with the artists intent, and thus . In this case, the artist simply seeks an injunction to stop the use of her/him image rather than seeking monetary compensation.

Interestingly enough, I was discussing this issue yesterday with a friend, and this morning she sends me an article from The Guardian that bridges these two positions.  The article concerns this 1960 image of Che Guevara, shot by photographer Alberto Díaz “Korda”Gutiérrez. Gutiérrez regained the copyright to this image in 2001, in a copyright lawsuit against Smirnoff Vodka (and which had Korda donating the monetary award to children’s health care in Cuba). According to interviews, Korda worried that the image of Che Guevara, who did not drink, was being trivialized by its use in promoting an alcoholic beverage that bore no relation to Cuba or Che’s political message. Since then his daughter, Diana Diaz, has consistently used copyright litigation to protect the image from “political misuse.” The monies gained by copyright infringement victories help pay for lawyers who litigate to protect the contexts of this image.

Keep in mind that for quite some time Cuba did not recognize copyrights (“derecho de autor”). In 1976 Cuba drafted its Copyright Act which became effective in 1977 (amended 1994) and joined the Berne Convention in 1997. These two documents are in fact remarkably fascinating. I’ll be translating these to English soon and making them available on this site.


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