Here's what Wikipedia has to say regarding the current legal status of the image:
The legal ownership and copyright of Guerrillero Heroico is complex and un-established internationally. Since Korda's 2001 death, his heirs have even been disputing among themselves copyright ownership of the famous picture. Korda's daughter, Diana Diaz, has pursued one successful lawsuit in 2003 in France against a Paris-based press rights group Reporters Without Borders for using the Che photograph in a poster campaign, decrying Cuba as "the world's largest jail," aimed at dissuading French tourists from vacationing in Cuba after the jailing of 29 dissident journalists. After her successful legal challenge, Korda's daughter declared to the Cuban newspaper Granma that "Reporters Without Borders should call themselves Reporters Without Principles." As for the charge of jailing dissident journalists, Reporters Without Borders has been described as an "ultra-reactionary" organization by the official Cuban state newspaper Granma.
In 2007, legal analyst Sarah Levy addressed the potential legal status of the famous image in Cuba and the United States. It is her ultimate contention that, in Cuba, "despite the claims of ownership from Korda's heirs, the State would now hold any rights associated with the photograph." 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. She ends her article by declaring that "The outcome of future litigation hinges upon the duration of protection available within a jurisdiction." In regards to the more commonly disseminated sylized version of the photo, lawyers say it will be an uphill struggle to deter non-photographic use of such a widely reproduced image, other than in countries like Italy where laws protect image rights.
Ariana Hernández-Reguant also addressed the legality in 2004, with a less promising view towards Korda's heirs being able to establish ownership over the image, in Copyrighting Che: Art and Authorship under Cuban Late Socialism. She notes how in reference to the case of (Korda v. Lintas & Rex), "There was never any official ruling on whether the depiction constituted a violation of copyright." The author goes on to state that "Korda took the picture while working for a state-run newspaper, his actual property rights would be questionable under both Cuban and international law."
In regards to Che Guevara's heirs, they also believe they have a legal justification in preventing the images "exploitation." Guevara's Cuban widow Aleida March, who will lead the effort from the Che Guevara Studies Center, stated in 2005 that "We have a plan to deal with the misuse. We can't attack everyone with lances like Don Quixote, but we can try to maintain the ethics of Guevara's legacy." 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." Despite Guevara's family's verbal commitment, such a challenge has yet to be conducted in court.
Actual legal claim to the image notwithstanding, we've been inspired to avoid involvement in any international skullduggery and copyright claims by tossing out the drawing of the Korda image and updating our shirt to portray "Che" with a puzzled face that supports the punchline that is the real message of our design – that many of the people you see wearing a Che tee have, at best, a vague grasp of the history behind the man displayed on their chest. We think the tee is actually funnier now:
So – whose actual image did I reference in drawing the new design? What face could stand in to allow me to capture the spirit of what "Che Guevara completely stumped as to his own identity" would look like? I started sketching a beret and moustache onto several pictures of confused faces and decided to go with, well ... a confused "Face":
That's right, under that revolutionary beret and moustache – our model was none other than The A-Team's Dirk Benedict.
