When Glenn Reynolds linked my PINO CHE T shirt design post, he commented that it had the potential to "create all sorts of amusing commotion." I assumed Glenn meant political commotion, but the commotion which has happened so far is copyright commotion.

While copyright commotion can be amusing, it can also be annoying. Anyway, when I uploaded the design to a leading T-shirt designer, everything seemed to work, and I was actually given a URL where the T-shirt could be sold. No big deal there. I thought all was well, and I put the link in my post so people could order it.

But last night, I got the following email from the T-shirt company:

We recently learned that your CafePress.com account contains material which may not be in compliance with our policies. Specifically, designing, manufacturing, marketing and/or selling products that may infringe the rights of a third party, including, copyrights (e.g., an image of a television cartoon character), trademarks (e.g., the logo of a company), "rights in gross" (e.g., the exclusive right of the U.S. Olympic Committee to use the "Olympic Rings"), and rights of privacy and publicity (e.g., a photo of a celebrity) are prohibited.

Accordingly, we have set the content that we believe to be questionable to "pending status" which disables said content from being displayed in your shop or purchased by the public.

So I wonder what is going on.

I'd hate to think that Che or his photographer are trying to censor me from beyond the grave!

MORE: The copyright parody plot thickens. Commenter Meleva suggested I go into cafepress and search for famous images, which I did.

Considering they sell t-shirts featuring the original Korda photograph like this one (from which the rest are derivative), obviously that's not the copyright issue that's causing the commotion.

Furthermore, they also feature t-shirts featuring the same Pinochet image on which I based the design!

So I'm more confused than ever. If neither image alone has copyright problems, then what's behind the commotion?

MORE: As I suspected, the Korda image is the problem. I just received this reply to my request for an explanation:

Thank you for contacting CafePress.com!

Unfortunately we have pended your Korda Che Guevara based image. Please understand that we feel Che is a political figure and that it is appropriate to use original, public domain or licensed images of Che on the CafePress.com Web site, however, the Korda Che Guevara image is a photograph that is protected by copyright laws and use of the actual image, or any derivatives can be viewed as copyright infringement.
We have been in contact with the attorney for the Korda estate, and below please find his contact information. We are more than happy to allow you to use the image if you obtain permission.
Maitre Randy Yolaz
Cabinet D'Avocats - Law Offices
17, Bis Avenue Foch
75116 Paris France
Tel: +33 1.40.67.99.10
Fax: +33 1.45.00.69.66
Sorry for the inconvenience. Once again, we do view Che as a political figure and allow pro or anti Che merchandise, however, your particular image is too similar to the original Korda photograph. Please note that merely altering the image is not sufficient, you need to create your own original work and it cannot resemble the unique features of the Korda photograph.

The Wiki entry for the Korda photo provides some background on the copyright issue. As Cuba was a non-signatory to the Berne convention, the image was widely reproduced for 40 years without any copyright protection. (Castro consider stated that he considered copyright law "imperialist bullshit," but he seemed to change his tune in 1997.) A couple of years later, Korda was upset by a Smirnoff vodka ad and sued in Britain, where he won a $50,000 judgment. Here's a brief summary:

A recent international case dealt with this: a Cuban photographer (Alberto Korda) took many pictures of Ché Guevara (never taking public credit for them), and for years allowed anyone who wanted to use them to do so (because he felt that it immortalized Ché, as well as the Cuban revolution). A few years ago, Smirnoff vodka used some of these images in an ad campaign; the photographer did not like this, and complained about copyright infringement. Seagram's (the company that makes Smirnoff) countered that the photographer had allowed the copyrights to fall into public domain because he had made no attempt to stop the many people who had used the images before without asking permission. By strictest interpretation, they were right (the pictures were made pre-Berne, they were never registered, no notice of copyright had ever been given, and world-wide use had been allowed with no attempt to stop or even notify the infringers), but the government of Cuba put some pressure on the English government to protect the copyrights. In a purely political move, Seagram's backed down, but all this says is that if you don't have the backing of a large governmental agency, you can possibly lose your copyrights to public domain.

I'd be willing to bet that they'll never dare sue ThoseShirts.com, because they'd certainly lose in any United States court. (Those cowardly British courts. Again!)

The more I thought about Cafe Press's attitude, the more annoyed I became.

Next I discovered that I am not alone. Cafe Press also censored The People's Cube for this "infringement":

Not only is it pure parody, it doesn't even resemble the Korda photo. Moreover, The People's Cube documents countless instances of parodies of corporate logos none of which Cafe Press is interested in protecting.

What a priceless double standard.

Parody capitalismo sí!

Parody communismo no!

And in what I think is a priceless act of retaliation, The People's Cube now has their own Cafe Press Parody Site!

UPDATE: The official PINO CHE T is now for sale here!

UPDATE (10/19/07): The Printfection link will no longer work, so (only after great reluctance) I redesigned the T-shirt yet again, minus the Korda design which upset the companies. It is now for sale at Cafe Press.

PLEASE NOTE: The above is not the Korda image, nor is it derived from it.

However, it remains my opinion that the Korda image is in the public domain, and that in any event it may be freely parodied.