Copyright on graphics in the public domain

[Romperstomper]

Folks,
Please can I seek guidance about copyright. I obviously understand the principles of copyright and want to ensure that my company never infringes copyright in any way.

A supplier that we occasionally use has offered us clothing designs using a print of Che Guevara and another of Bob Marley. These are based on old images that are seen all round the world on zillions of products, posters and websites. I, of course, understand that someone must have taken the original photos and therefore must own the copyright but as these images have been replicated millions of times by millions of businesses would we be at risk if we sold these products.

The Che Guevara image is available all over the place so does this count as being "in the public domain" and therefore can it be used without fear of action from a copyright holder?

My supplier says that there will be no problem using these images.

any advice greatly received.

Romper

 

[Eagle]

 
Good little pdf this... Mentions a few good cases plus Che Guevara and the legal action taken by the photographer Albert Korda against an advertising agency and Smirnoff Vodka.

They settled out of court. :shock:

If I recall corectly, Korda still owns the copyright (and technically, he owns it for seventy years (from 1960))

http://www.bmrstudios.com/Copyright.pdf

What does "in the public domain" mean anyway? Artwork, in whatever form, is automatically enshrined with copyright.

 

[VeryMark]

I think Eagle pretty well answered the question - note that the term of copyright in print and graphic material is now generally 70 years from the death of the author, which is a pretty long time!

If anyone needs more details, we can supply free pdf's with primers on a variety of subjects, or a complete electronic guide (about half a megabyte in size) to Trade Marks, Brand Protection & Related Copyright and Design.

The guide is sealed with a ‘Thawte’ Content Signed Certificate (Microsoft Authenticode) allowing safe electronic distribution over the Internet. It is also available as a mini cd-rom.

 

[Romperstomper]

Thanks folks for this. Fter searching through Google I see that the graphic that we see most often was created by Jim Fitzpatrick, (see http://www.jimfitzpatrick.ie/update/che.html) and his website states that he makes the graphic available as a royalty free image. It is of course based on the work of Alex Korda but it appears that the Jim Fitzpatrick modified version was the one that became famous around the world before Alex Korda came forward as the owner of the original.

A rather strange situation but it suggests to me that using the image is fairly safe. Any thoughts?

 

[VeryMark]

If Jim Fitzpatrick copied Alex Corda without permission, then use of Jim Fitzpatrick's copy would infringe Alex Corda's copyright - note that a copy doesn't have to be exact to infringe; it's more a question of whether you have taken the benefit of someone else's skill and labour, even in a different form.

I'd need to know more to advise in the particular circumstances here - that is the problem with copyright sometimes, if you don't know the background, it can be difficult to judge the risk.

 

[Romperstomper]

This does seem to be a tangled web but three things make me feel relatively comfortable:
1) Alex Korda is no longer alive
2) when he was alive he only sued one company ever for using the image and it was selling vodka
3) Jim Fitzpatrick is acknowledged as the creator of the modified work. (It was this graphic that Andy Warhol used in his work)
4) Jim Fitzpatrick's site specifically states "Because the various posters of Che I produced were based on a photograph by a then unknown Cuban photographer plus the fact that I had met him (see Biography section ), idolised him and of course wanted to make sure he was never forgotten I made all the Guevara images copyright free. That's how it spread everywhere so quickly. "

A can of worms but a can worth opening I believe.

Philip, thank you for your responses above.

Nigel

 

[VeryMark]

In view of what you say, this matter may fall under the heading of "justifiable commercial risk", i.e. there could be a legal risk if you are challenged, but the risk of this happening in practice is perhaps low.

(This is a practical view rather than a considered legal opinion.)