The black and red image of the Cuban revolutionary Che Guevara, which has become one of the most iconic, well recognised and potentially lucrative images in history, has once again entered the news headlines with the recent legal bid by Irish artist Jim Fitzpatrick to secure copyright over the image.

The photo on which Mr Fitzpatrick based his picture is titled “Guerrillero Heroico” and was taken by Alberto Korda in 1960. The legal status of this image has been the subject of much debate throughout the years. Initially, the image was not covered by international copyright agreements as Cuba was not a signatory to the Berne Convention on copyright, however in recent years Mr Korda’s children have sought to control the use of the image against certain commercial exploitation, citing the moral rights of Mr Korda. It has been argued however that as Mr Korda captured the image during the course of his employment then the copyright should vest in his employers.

Although Mr Fitzpatrick’s picture is based on the Korda photograph, his legal advisers argue that it is an original work of art and that copyright can therefore be established. Mr Fitzpatrick has stated that he intends to assign the copyright in the image to Che Guevara’s family and the Cuban people. Mr Fitzpatrick’s bid may however be complicated by the widespread use of the image since its creation.

These unique factual circumstances illustrate the various issues and difficulties which can arise in relation to copyright. On a practical level companies should ensure that they examine and adequately address the issues surrounding the ownership of intellectual property created by employees and independent contractors so as to avoid any potentially lengthy and costly legal battles occurring in the future.

Contributed by Leo Moore.