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In the article it states that:

However, regarding the United States ... "Under the relatively low requirements articulated by U.S. courts, Korda's Guevara image should obtain copyright protection."[76] She ends her article by declaring that "The outcome of future litigation hinges upon the duration of protection available within a jurisdiction." In reference to this pronouncement, Guevara's daughter Aleida Guevara told Reuters, "It will be costly and difficult because each country has different laws, but a limit has to be drawn."[73] However, the family has not yet mounted any court challenges.

However while Guevara's family hasn't mounted any legal charges but Korda's family has and won.

1:13:00 - "After the death of my father, people thought, 'Hey, the author of the photo has died. Let's just use it.' ... But it's not that way. You have to ask permission to use it. I am left to manage the Korda estate. I am the heir of his work. -- Diana Diaz, documentary Chevolution

Korda's daughter, Diana Diaz, pursued a successful lawsuit in 2003 in France against a Paris-based press rights group Reporters Without Borders. And as shown by the documentary Chevolution Tom Morello from Rage Against the Machine says that Che was used on the cover art from Bombtrack (1992) and that the family was recognized as owning the copyright "I never heard that the author was unhappy with our use of the image. I just heard that they wanted money ... They came after the band aggressively to pay a lot of money"

Diaz goes on to say that she has filed numerous lawsuits and that "the lawyers almost always win". Based on what Sarah Levy said, that it would be easy to have the Image copyrighted in the United States. "The outcome of future litigation hinges upon the duration of protection available within a jurisdiction." It seems that the litigation has already happened and that the Korda Estate owns the copyright. -- Esemono (talk) 12:38, 26 June 2010 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2010-06-26T12:38:00.000Z","author":"Esemono","type":"comment","level":1,"id":"c-Esemono-2010-06-26T12:38:00.000Z-Copyright_status_from_Chevolution","replies":["c-Redthoreau-2010-07-08T01:15:00.000Z-Esemono-2010-06-26T12:38:00.000Z","c-Redthoreau-2010-07-08T07:55:00.000Z-Esemono-2010-06-26T12:38:00.000Z"]}}-->

Esemono, there are a few key points in response to your post:

[1] Morello in the documentary mentions how they "wanted money", but in fact they never got any. That is because Korda's estate nor Guevara's family received any royalties for Rage Against the Machine's use of the image.

[2] Neither Korda's estate nor Guevara's family have ever been given legal right to the image in the United States nor in Cuba. It would be virtually impossible to be given ownership in Cuba, because Cuban Decree Law no. 156, from September 28, 1994, to amend part of Law no. 14 on December 28, 1977, Copyright Act (Article 47) - states that pictures taken in Cuba fall into the public domain Worldwide, 25 years after their first use. As for the United States, since the image was first published in Cuba without compliance of US copyright formalities and used in Cuba before February 20, 1972 (more than 25 years before Cuba signed the Berne Convention in 1997) it is also in the public domain.

[3] In 2003 one of Korda's daughters did sue the French human rights group Reporters sans Frontieres (RSF) for 1.14 million euros for using the Che image in a way she deemed derogatory, however the group simply stopped using the image before any legal judgment was rendered. In suing the group it is important to --> note that Diaz Lopez's lawyer, Randy Yaloz remarked that "We are going after everyone who betrays the moral rights of my client", not property rights (as Moral Rights fall under civil law). "Moral rights" are a separate component of copyright law that are not recognized in the U.S., but are recognized in some other countries (notably in France where Diaz filed the lawsuit). Basically they protect the integrity of the work from defamation, distortion, slander, or offensive mutilation (even if the originator no longer owns the copyright)

[4] Moreover, it is important to note that some of Korda's other children dispute Diaz Lopez's right to control the image, as does the Cuban government - (arguing that Korda took the image as a state employee). Whether she is the rightful heir has also never been determined in court.   Redthoreau -- (talk) 01:15, 8 July 2010 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2010-07-08T01:15:00.000Z","author":"Redthoreau","type":"comment","level":2,"id":"c-Redthoreau-2010-07-08T01:15:00.000Z-Esemono-2010-06-26T12:38:00.000Z","replies":["c-Redthoreau-2010-07-08T02:45:00.000Z-Redthoreau-2010-07-08T01:15:00.000Z"],"displayName":"--"}}-->

Esemono, I have also adjusted the particular section of the article that you relied on for your first quote - which was confusing and incorrect in a few areas. That is one of the reasons that Wikipedia is not allowed to be used as a reference in of itself.   Redthoreau -- (talk) 02:45, 8 July 2010 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2010-07-08T02:45:00.000Z","author":"Redthoreau","type":"comment","level":3,"id":"c-Redthoreau-2010-07-08T02:45:00.000Z-Redthoreau-2010-07-08T01:15:00.000Z","replies":["c-Esemono-2010-07-08T06:22:00.000Z-Redthoreau-2010-07-08T02:45:00.000Z"],"displayName":"--"}}-->

But in the documentary Tom Morello from Rage Against the Machine say he and the band did pay. I don't have the docu right now but if I remember correctly he said, "they wanted money and they came after us aggressively. But we were more than happy to pay as they owned the copyright and we made money off the image" again paraphrasing. So if they can demand, and get, money from Rage Against the Machine in the States it seems that the image is covered under copyright law.-- Esemono (talk) 06:22, 8 July 2010 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2010-07-08T06:22:00.000Z","author":"Esemono","type":"comment","level":4,"id":"c-Esemono-2010-07-08T06:22:00.000Z-Redthoreau-2010-07-08T02:45:00.000Z","replies":["c-Redthoreau-2010-07-08T07:23:00.000Z-Esemono-2010-07-08T06:22:00.000Z"]}}-->

Esemono, this seems to be a text book example of the potential hazards of WP:OR as you are trying to make your own conclusions from a heavily edited snippet of a documentary that you vaguely remember. I in fact own the documentary, and just watched the clip in question. The verbatim statement by Morello is:

"We thought it was in the public domain. When we heard it was owned by someone we were happy to pay ya know, we had used it for commercial use, we had sold t-shirts on it, it seemed like any other image that was something we felt obliged to pay for, but it was, uh, they came after the band aggressively to uh be paid a lot of money."

And that is the last time Morello appears to discuss the matter. Note, he does not say whether they in fact had to pay any money and I can't locate any published news sources that recount the band having to pay for their use of the image. Morello also only states that they "heard it was owned", and not that they ever got legal confirmation that it was. It seems that you are trying to WP:SYNTH and draw your own conclusion from this video clip which is vague at best. Moreover, not even 3 seconds after Morello states this, Author Trisha Ziff remarks on the film that "The Guevara family asked that the image be nationalized and become an image of Cuba, become a populist and free image." - but once again the viewer is not told whether in fact this happened either. It is not enough to take Morello's remarks and make your own legal conclusion.   Redthoreau -- (talk) 07:23, 8 July 2010 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2010-07-08T07:23:00.000Z","author":"Redthoreau","type":"comment","level":5,"id":"c-Redthoreau-2010-07-08T07:23:00.000Z-Esemono-2010-07-08T06:22:00.000Z","replies":["c-Esemono-2010-07-08T09:56:00.000Z-Redthoreau-2010-07-08T07:23:00.000Z"],"displayName":"--"}}-->

Really from that statement I get that they did pay money. But you're right I would be assuming that they paid because the image was "was owned by someone". It never says in the film that they ever got legal confirmation that it was. But if there was a source that said Rage Against the Machine paid money to the Korda estate would that mean that its copyrighted in America? -- Esemono (talk) 09:56, 8 July 2010 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2010-07-08T09:56:00.000Z","author":"Esemono","type":"comment","level":6,"id":"c-Esemono-2010-07-08T09:56:00.000Z-Redthoreau-2010-07-08T07:23:00.000Z","replies":["c-Redthoreau-2010-07-08T19:57:00.000Z-Esemono-2010-07-08T09:56:00.000Z"]}}-->

Esemono, to answer your question - it depends. Rage could have paid money to the estate in an out of court settlement to avoid a trial and verdict as the parties usually do. There is also the possibility that Diaz could have won a case based on her "moral rights" against Rage, outside the U.S. where moral rights are recognized. But if you could find a source that says there was a legal judgment that Diaz was awarded money from Rage in a court decision and that the Judge ruled she held copyright in the U.S. - then possibly it would imply copyright (taking into account whether the verdict was appealed and what consequent sources state on that outcome, the reliability of the source, and what it states in relation to others WP:Undue).   Redthoreau -- (talk) 19:57, 8 July 2010 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2010-07-08T19:57:00.000Z","author":"Redthoreau","type":"comment","level":7,"id":"c-Redthoreau-2010-07-08T19:57:00.000Z-Esemono-2010-07-08T09:56:00.000Z","replies":[],"displayName":"--"}}-->

• Esemono, in addition, throughout the film Korda's heirs speak about how they want patrons to "respect the image", not use it "to promote vices like alcohol, tobacco etc", and "protect the integrity of the image." These are matters related to Moral rights (copyright law). Thus, Korda's daughter would not even have to hold the copyright of the image to win a suit or earn an out of court settlement in France on the ground of moral rights (which are not dependent on one holding the copyright). Smirnoff, in their case against Korda himself (who objected on moral grounds to the image being used to promote liquor) opted to merely pay him 50,000 $ and avoid a court ruling. Moreover, when Korda's heir Diaz issues "officially licensed merchandise" as is discussed in the film, what she is stating up front is "I do not object on moral grounds to Che's face on this item and will not sue you in court." Importantly though, an American court has never ruled that Diaz would be the sole proprietor of the image, as Guevara’s family claims if anyone would be they are.   Redthoreau -- (talk) 07:55, 8 July 2010 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2010-07-08T07:55:00.000Z","author":"Redthoreau","type":"comment","level":2,"id":"c-Redthoreau-2010-07-08T07:55:00.000Z-Esemono-2010-06-26T12:38:00.000Z","replies":[],"displayName":"--"}}-->

Removed:

However, regarding the United States, she postulates that "Under the relatively low requirements articulated by U.S. courts, Korda's Guevara image should obtain copyright protection."

So by removing this from the article you're saying that Sarah Levy doesn't actually say this?

BTW this is the quote in context:

More recently, a federal circuit court noted that "[a] photograph may be copyrighted, although it is the work of an instant and its significance may be accidental." n21 The Supreme Court's latest clarification of the originality and creativity requirements was in Feist Publications, Inc. v. Rural Telephone Service Co., where the Court stated that the originality requirement is not difficult to satisfy and the author need only imbue the work with "some minimal degree of creativity." n22 When considering the protection afforded to photographs under United States law, the Guevara image appears capable of copyright protection. The photograph taken by [*690] Korda was created independently - the work of an instant with significance that may have been unrealized at the time. n23 Moreover, Korda was not just a person with a camera, snapping photos without creative care. He was a professional photographer, having established his first commercial studio four years prior to taking the Guevara photo. n24 Under the relatively low requirements articulated by U.S. courts, Korda's Guevara image should obtain copyright protection.

- Esemono (talk) 06:56, 8 July 2010 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2010-07-08T06:56:00.000Z","author":"Esemono","type":"comment","level":1,"id":"c-Esemono-2010-07-08T06:56:00.000Z-Law_student_Sarah_Levy","replies":["c-Redthoreau-2010-07-08T07:42:00.000Z-Esemono-2010-07-08T06:56:00.000Z"]}}-->

Esemono, setting aside the fact that she was a "law student" at the time and not a graduate (thus making her remarks less WP:Reliable), she merely postulates that Korda's heirs "should" be able to obtain copyright protection. She is making a hypothesis (guess) on a hypothetical situation that has not happened. To answer your specific question, no I am not trying to deny she said that (in fact I added that statement to the article originally over a year ago), however she says many things in her article (far too many to all include here). Our purpose as editors is to take the most relevant parts for inclusion in this article with respect to an array of variables. It is my estimation that this sentence only creates unnecessary confusion on the matter, and that it is actually incorrect when compared to the other published sources and U.S. copyright law. U.S. courts have already ruled that photos published in Cuba prior to 1972 can't be copyrighted, since Cuba did not sign the Berne Convention until 1997 and it only retroactively goes back 25 years to 1972 (this image was taken in 1960 & published internationally in 1967). Levy's failure to know this, further draws her analysis in regards to U.S. copyright into question, although her analysis vis-à-vis Cuban law (which is included) mirrors other sources.   Redthoreau -- (talk) 07:42, 8 July 2010 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2010-07-08T07:42:00.000Z","author":"Redthoreau","type":"comment","level":2,"id":"c-Redthoreau-2010-07-08T07:42:00.000Z-Esemono-2010-07-08T06:56:00.000Z","replies":["c-Esemono-2010-07-08T09:49:00.000Z-Redthoreau-2010-07-08T07:42:00.000Z"],"displayName":"--"}}-->

The only reason I bring her up is that her opinion is heavily cited Commons image page (but I see you've cleaned that up). So a year ago you agreed with copyright expert Sarah Levy that "Under the relatively low requirements articulated by U.S. courts, Korda's Guevara image should obtain copyright protection." But now you've changed your opinion and disagree with barely out of high school law student Sara Levy? -- Esemono (talk) 09:49, 8 July 2010 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2010-07-08T09:49:00.000Z","author":"Esemono","type":"comment","level":3,"id":"c-Esemono-2010-07-08T09:49:00.000Z-Redthoreau-2010-07-08T07:42:00.000Z","replies":["c-Redthoreau-2010-07-08T20:12:00.000Z-Esemono-2010-07-08T09:49:00.000Z"]}}-->

Esemono, please read WP:AGF. I resent your implication that I am somehow "cleaning up" or censoring material, which I in fact added in the first place. That commons page you are relying on was written by me as well, and I reserve the right to correct my past additions as I discover new information on the topic (my words are not set in stone). I had been meaning to address the "moral rights" angle for some time now, but was busy with other things. Your desire to have the image labeled as copyrighted merely caused me to address the matter now as it is crucial to understanding the legal implications on the photograph. As the author of the majority of the current article, I believe that I have a fairly good understanding of the material - and my goal here is to present an accurate representation based on the sources and nothing more. I don't personally gain anything by the image being in the public domain and thus my goal is not personal interest - what's yours? Lastly, please don't put words in my mouth, I never said she was "out of high school", I said she was a law student not a graduate - which is an important distinction. Presumably she was still in the process of "studying law" and learning about all its nuances (as every law student does). If you want me to continue to discuss the issue in good faith, then it would help if you were less confrontational and impugning in your remarks.   Redthoreau -- (talk) 20:12, 8 July 2010 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2010-07-08T20:12:00.000Z","author":"Redthoreau","type":"comment","level":4,"id":"c-Redthoreau-2010-07-08T20:12:00.000Z-Esemono-2010-07-08T09:49:00.000Z","replies":["c-Esemono-2010-07-08T23:08:00.000Z-Redthoreau-2010-07-08T20:12:00.000Z"],"displayName":"--"}}-->

You miss understand my impugningness. I was just commenting that you had cleaned up the commons image, more of a thank you than anything. I was being snarky about how a year ago you trusted and added Sarah Levy's opinion as a copyright lawyer. But now that her essay supports that the Korda family might have copyright status in America she is just a lowly law student who fails WP:Reliable source and should have never been added in the first place. However, please don't misunderstand my motives. That is the beauty of wikipedia, something can always be improved upon. I'm not trying to be confrontational I'm just trying to exhaust every avenue to prove that the image is copyright free. Indeed the only weakness in your argument seems to be weather or not there is existence of proof that Rage paid because the image is copyrighted in America. -- Esemono (talk) 23:08, 8 July 2010 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2010-07-08T23:08:00.000Z","author":"Esemono","type":"comment","level":5,"id":"c-Esemono-2010-07-08T23:08:00.000Z-Redthoreau-2010-07-08T20:12:00.000Z","replies":["c-Redthoreau-2010-07-09T06:43:00.000Z-Esemono-2010-07-08T23:08:00.000Z"]}}-->

Esemono, my apologies if I misunderstood your demeanor. "Snarkiness" is hard to decipher in written type without the benefit of voice inflection or facial expression. I have and will certainly look to see if I can find any information regarding any possible payment by Rage (you should as well), but it would also have to be accompanied by a definitive court ruling in order to be relevant (an out of court cash settlement, as usually occurs, wouldn't tell us anything). I share your belief that Wiki should continually be improved; I just don’t want this to turn into a never-ending circular debate (as often happens on Wiki), where it seems as if we are adversaries arguing in a courtroom, rather than a good faith collaboration where there is no "winner".   Redthoreau -- (talk) 06:43, 9 July 2010 (UTC)__DTREPLYBUTTONSCONTENT__-->__DTELLIPSISBUTTON__{"threadItem":{"timestamp":"2010-07-09T06:43:00.000Z","author":"Redthoreau","type":"comment","level":6,"id":"c-Redthoreau-2010-07-09T06:43:00.000Z-Esemono-2010-07-08T23:08:00.000Z","replies":[],"displayName":"--"}}-->

This is an archive of past discussions. Do not edit the contents of this page. If you wish to start a new discussion or revive an old one, please do so on the current talk page.