The Volokh Conspiracy

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Volokh Conspiracy

Che Guevara, Donald Trump, Public Citizen (Founded by Ralph Nader), and Copyright Law

A fun copyright controversy.


From Paul Alan Levy of Public Citizen (Consumer Law & Policy Blog):

The personal and commercial heirs of the deceased photographer Korda, best known for the iconic photograph of Che Guevara that has adorned Tshirts and posters displayed by young admirers for fifty years, have issued a takedown demand to Liberty Maniacs over its sales of parody items that display the photo's cap and hair but replace Guevara's visage with, alternately, Donald Trump and Alexandria Ocasio-Cortez. Advancing claims both under the doctrine of moral rights and under copyright law, Randy Yaloz, a New York lawyer based in Paris who proudly identifies himself as "combative" (but wrote using an letterhead identifying himself as an adjunct professor at his alma mater, New York Law School, where he does not currently teach), demands both that the parodies be taken off the market and that the parodist pay damages.

Trump Che

In a response letter sent this morning, we have explained that moral rights are not enforceable in the United States, that the First Amendment protects the right of parody, and that any copyright claims would be defeated by fair use. The lawyer has not answered my question about whether he is trying to stop the production of Tshirts that carry the Korda photo adoringly (albeit without license fee), or if copyright law is just an excuse to suppress critical uses of the photo, in which case Liberty Maniac (whose parodies I have been pleased to protect against campaign committees for Hillary Clinton and Bernie Sanders, as well as the NSA and TSA), could have a claim for copyright misuse.

Paul's letter is a characteristically readable and professional-yet-pugnacious; an excerpt from the concluding paragraph:

(I should note, for the sake of precision, that Ralph Nader hasn't been officially involved with Public Citizen since 1980; but the juxtaposition of him, Guevara, and Trump was too much to resist. I should also note that this post was blogged using the highest cord in the land, here at the U.S. Supreme Court library.)