Ernesto “Che” Guevara has come a long way. Once best known as a fierce companion of Fidel Castro, he now graces the T-shirts of revolutionaries, as well as assorted hipsters, celebrities, and stoners who couldn’t find Che’s native country (Argentina) on a map. Since the release of The Motorcycle Diaries, a film based on Che’s memoirs that emphasizes his wandering, Kerouac-like persona more than his communist heroics and martyrdom, sales of posters, buttons, and other Che merchandise have soared. Che is more popular than ever, even if his socialist ideals have run aground.
If becoming a martyr, a cult of personality, and a sex symbol weren’t indignity enough for a Marxist, his image has now been copyrighted. A Georgia man named David McWilliams is claiming he has an exclusive license to reproduce the famous Che photo anywhere in North America—and he’s threatening to sue anyone who violates this right. That includes Northern Sun, the charming boutique for radicals in South Minneapolis. “Please send a list of total inventory on your shelves, and forward same to us for destruction,” McWilliams commanded in an email to Northern Sun owner Scott Cramer on August 17. “Failure to comply with these requests will result in our pursuit of all legal remedies available to us.”
Cramer says he initially agreed to start buying all of his Che merchandise from McWilliams’ company, but then he found out the T-shirts were made in Honduras, a country with terrible labor conditions. Who exactly was this man who claimed to own Che? When McWilliams refused to supply Cramer with T-shirts made in the U.S.A., Cramer was forced to keep all Che products out of his catalog and website until he and his lawyers could figure out what to do.
McWilliams did not respond to my friendly inquiries. But according to Cramer, McWilliams says he purchased the license from some Frenchmen after they threatened to sue him for violating their copyright. How the Frenchmen got rights to the photo is unclear.
The iconic image of Che comes from a photo taken in 1960 by Cuban photographer Alberto Korda. The print collected dust in Korda’s studio until 1967, the year of Guevara’s death, when a visiting Italian publisher got a copy of the print from Korda, brought it back to Europe, and sold more than two million posters. Korda could do nothing, because Cuba had, until 1997, refused to join the international Berne Copyright Convention.
Even then, Korda only bothered with one lawsuit, against Smirnoff Vodka in 2000. They wanted to use it in an ad campaign. Korda said he didn’t mind if people reproduced Che’s image “to propagate his memory and the cause of social justice throughout the world,” but he was against using it to sell alcohol, or “for any purpose that denigrates the reputation of Che.” He won the case, and he donated all the money to Cuban hospitals.
When Korda died in 2001, the rights he had exercised passed on to his daughter. She has been twice as aggressive in suing people who use the image for political causes, particularly those she feels her father would abhor (one anti-Cuba and another anti-abortion). But it is unclear whether she has ever profited from any licensing schemes. Some sources say it is not Korda’s daughter, but Che’s estate, that now controls the copyright.
“That was my first mistake,” says Cramer. “When McWilliams offered to send me proof, I said, ‘No, that’s okay, I believe you.’” Cramer consulted a copyright lawyer, but he could offer little advice without actually seeing documentation of McWilliams’ rights.
But Johnny Havana, a merchandiser based in Toronto who runs TheCheStore.com, says Cramer did the right thing. After dealing with similar threats a year ago, Havana did some research and concluded that it wasn’t worth it for a small company to take on McWilliams. “I would have had to go to France to fight.” Havana says McWilliams sells him a good product and he’s never had any complaints. And the T-shirts Havana gets are all made in the United States, he says.
So why did McWilliams tell Cramer he could only buy Che T-shirts made in Honduras? “It’s a big company,” says Havana. “He can do whatever he wants.” In other words, capitalism wins. —Katherine Glover
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