Rolling Over in Her Grave: Frida Kahlo’s Trademarks and Commodified Legacy

By Laurel Wickersham Salisbury.

Art both creates and possesses cultural value, but this value can also be monetized, and, increasingly in today’s society, commercialized. This is especially true of iconic artists such as Frida Kahlo, Pablo Picasso, Andy Warhol and the like whose personal identities have become as instantly recognizable as their art. From Mattel’s Inspiring Women™ Barbie® doll of Kahlo to National Geographic’s ‘Genius: Picasso’ television series and fashion brand Alice and Olivia’s ‘collaborations’ with Jean-Michel Basquiat and Keith Haring, opportunities are plentiful for licensing the various rights in the “suite” or “bundle” of intellectual property rights. This creates moral and legal issues when an artist is deceased and control falls into the purview of the artist’s estate. Family members or foundations established in the artist’s name inherit the copyrights, trademarks, and, if applicable, the right of publicity. As evidenced by the recent controversies involving the Frida Kahlo Corporation, complications may arise when multiple parties must confer as to how best to continue the artist’s legacy.

While intellectual property rights have distinct purposes, together, they work to protect both the creator and the consumer. Copyright law exists to incentivize creation by offering to a creator exclusive control over their works for a statutory time period.^[1] The period of protection varies from country to country and from type of protected content; in general, in the U.S., copyright lasts for the duration of the artist’s lifetime and for 70 years post mortem. In Mexico, however, copyright now lasts for 100 years after the artist’s death, but artists who died before 1956 (think: Frida Kahlo) received only 20-25 years of post mortem copyright protection.^[2] Once a work of art of sufficient originality and creativity is fixed in a tangible medium, the copyright is automatically vested in the artist.^[3]

Trademark law, on the other hand, purports to exist for the protection of the consumer and the investor. Based on the assumption that established brands have value, trademarks can be registered for an identifying word, symbol, or phrase for the purpose of differentiating certain products from others.^[4] To qualify for trademark protection, the registrant must be able to demonstrate (1) use in commerce, and (2) distinctiveness.^[5] In some cases, trademark protection can also be awarded to artists. Personal names “can receive trademark protection only if they've become descriptive and have acquired a secondary meaning.”^[6] For example, an artist like Frida Kahlo or Pablo Picasso, whose artistic talent and tenacity led to critical acclaim and worldwide recognition, “has become a brand that can be applied at will.”^[7] In recognition of this and the fact that “[e]veryone wants a piece of [the artist],”^[8] it can make both protective and economic sense for an artist’s heirs or estate foundation to trademark the artist’s name because it has come to mean something and their signature serves as an emblem of artistry and quality. As once expressed by Picasso’s heirs, “[i]f we don’t use it, someone else will,”^[9] and thus, if there is an interest in protecting the artist’s legacy, licensing opportunities must be controlled. The avenue for such control is often through trademark registration.