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Owning Frida Kahlo: The Frida Kahlo Corporation and Trademark Law

June 20, 2024

Frida photographed by her father, Guillermo Kahlo, 1932. (Photo: Guillermo Kahlo via Wikimedia Commons, Public domain)

Frida photographed by her father, Guillermo Kahlo, 1932. (Photo: Guillermo Kahlo via Wikimedia Commons, Public domain)

By Morgan Austrich

In a society where any image can be easily reproduced and commodified, the work and likeness of an artist are no exception. On March 24, 2024, the Frida Kahlo Corporation (“FKC”) filed two lawsuits against Amazon vendors for trademark infringement.[1] In their primary complaint, FKC claimed the online merchants sold images and artworks that were “virtually identical to and/or substantially similar to the Frida Kahlo works.”[2] The company demanded the vendors surrender all profits made from the selling of her image or pay two million dollars for each use of the trademarks.[3] Not only did they profit from selling unauthorized reproductions of Frida’s likeness, FKC accused them of conspiring to do so, claiming they “communicated with each other and regularly had chat rooms and online forums together to discuss tactics for operating multiple accounts, evading detection, pending litigation, and potential new lawsuits.”[4]

I. What is The Frida Kahlo Corporation?

Frida’s legacy has a complicated and controversial ownership history. In 1954, Frida passed away intestate, i.e., without having executed a last will and testament. Under Mexican law, in an intestate succession, the deceased’s industrial property rights[5] pass to the nearest surviving relative.[6] Accordingly, control over Frida’s body of work was passed to her niece, Isolda Pinedo Kahlo.[7] However, Isolda could only lay claim to these rights for a limited amount of time since the “right of publicity over a portrait is protected during the life of the owner and 50 more years after his or her death.”[8] After 50 years passed, Isolda and her daughter Mara Cristina Romeo Pinedo sought alternative means to maintain control over Frida’s likeness. In 2004, the mother-daughter pair founded FKC along with Venezuelan businessman Carlos Dorado.[9] Dorado brought a business-like approach to safeguarding Frida’s image, with a goal of commercializing and licensing her as a brand. By means of over two dozen trademarks, FKC was able to secure ownership over several aspects of Frida’s story, including her name and features.[10]

II. What is a Trademark?

According to US Code 15 U.S.C. § 1127, “a trademark is any word, name, symbol, device [or any combination thereof] used by a person to identify and distinguish that person’s goods from those of others and to indicate the source of the goods [even if that source is generally unknown].”[11] By preventing others from using their trademarks, companies protect themselves from unwanted uses of their brand in commerce. Under the functionality doctrine, anything eligible for protection under trademark law must be both distinctive and used in commerce.[12] Registration of a trademark confers the trademark owner with the ability to bring an infringement lawsuit in federal court to enjoin the unauthorized use and potentially recover monetary damages.[13] Trademark infringement is determined by several factors, such as the similarity demonstrated between the trademarked and the contested images, the degree of caution used by a regular consumer, and the intent of the defendant.[14] In the case of FKC, any use of the term “Frida Kahlo,” FKC’s trademarks in domain names, the use of FKC trademarks in publications, and the use of any FKC trademark in sales to other countries without FKC’s written authorization is considered an unauthorized use of their intellectual property.[15]

III. Who Owns Frida?

The FKC’s extensive trademarks are intended to prevent unauthorized sales of Frida’s image, like those of the accused Amazon vendors. FKC’s suit poses the broader question of who should have the right to reproduce a late artist’s work, and it also raises the issue of whether anyone should profit from the likeness of a deceased person. As FKC’s numerous trademarks afford it with the greater ability to regulate Frida’s name and likeness , its role representing Frida’s legacy has been called into question.

While FKC was initially formed in collaboration with Frida’s heirs in an effort to protect her work, the company eventually came into disagreement with Frida’s descendants. FKC had transformed Frida into a brand, using her likeness as a source of profit. Maria Cristina Romeo Pinedo’s daughter, Mara Romeo, sued FKC in 2019, attempting to stop the sale of a Frida Kahlo Barbie doll that FKC developed in partnership with Mattel. The Frida Barbie doll had light skin, a thin figure, and an inauthentic representation of Mexican dress. Mara publicly disapproved of the doll’s appearance and production, arguing that “it should have been a much more Mexican doll . . . dressed in more Mexican clothing with Mexican jewelry.”[16] In Mexico, sales were temporarily halted. FKC responded to Mara’s actions by suing her in Florida, accusing Frida’s great-grandniece of trademark infringement for her use of the Frida Kahlo name and image online without authorization.[17] FKC claimed that Mara and her mother “sought to attack the validity of FKC’s ownership of ‘Frida Kahlo’ related trademarks and to misappropriate such trademarks” by publicly asserting that FKC does not own them. They asserted that Mara’s lawsuit against FKC “damaged” their brand and “caused [them] financial harm.”[18] Ultimately, the Florida case was dismissed in 2021, and the Superior Court of Justice of Mexico City ruled in favor of FKC, allowing Mattel to sell Frida Barbies across stores in both countries.[19]

The outcome of these cases reaffirmed FKC’s legal control over Frida’s image, despite her family members’ desires. The corporation’s commercialization of Frida and her art has since continued through collaborations with several consumer brands. In 2022, FKC produced a clothing line with Puma. The brand deal prompted further legal action from Mara Romeo, who threatened to sue Puma in Spanish courts if it did not terminate its campaign.[20] In the same year FKC launched a clothing line with Shein, a fast fashion brand.[21] It seems that FKC is less concerned with how Frida’s likeness is reproduced and more so with who can profit from her image.

IV. What Would Frida Want?

In addition to FKC’s aggressive legal tactics, Frida’s lifelong anti-imperialist stance complicates FKC’s use of her image as a brand. Frida’s art often critiqued the American capitalist system and took inspiration from the Mexican revolution. Frida’s likeness is widely reproduced to celebrate countercultural movements critiquing American consumerism and imperialism.[22] Several folk artists have argued that reproductions of Frida’s image should conform to her values. One such artist was Cristine Melo, who brought a federal lawsuit against FKC in California after the company attempted to prevent her from selling Kahlo-inspired paintings online. Melo claimed that Dorado used his “business acumen to ‘con’ the Kahlo family into giving him control of Frida Kahlo’s Legacy,” and also argued that Frida would have supported local artisans like herself.[23] The artist eventually settled with FKC, but her suit highlighted the importance of considering Frida’s values when reproducing her work. In the absence of her will, however, the artist’s true desires are impossible to determine. While Frida’s wishes could be inferred from her life and work, legal proceedings afford decision-making power to FKC, and the choice to abide by these theorized desires is entirely theirs.

The post-mortem commercialization of an artist is not unique to Frida. Controversy exists even when an heir has the rights to their familial legacy. For example, Pablo Picasso’s son, Claude Pierre Pablo Picasso, is the legal administrator of his estate, controlling all rights to Picasso’s name, merchandise, reproductions and exhibitions via the Picasso Administration. With this power, Claude profits from the sale of Picasso mugs and pens; however, he has neglected to use his fortune in a more educational manner, such as potentially employing a team of experts that could research the mass amount of works his father left behind. Like FKC, he also has profited from brand collaborations, working with French car manufacturer Citroën, who pays annual royalties to the Picasso Administration.[24] Whether an artist’s image is controlled by a relative or a brand, they are vulnerable to commodification.

Conclusion: Honoring a Legacy

Regulating the work and likeness of a late artist is a complex issue fraught with legal battles, ethical dilemmas, and conflicting interests. Frida Kahlo’s legacy is further complicated by her anticapitalist social and political views, which were often reflected in her work. Trademarks enable FKC to legally control nearly all aspects of Frida’s persona, determining how her name and art will be used. Against the wishes of Kahlo’s family, FKC has profited from representations of Frida that are in direct opposition to the values she maintained throughout her lifetime. To a certain extent, it is necessary to assign a level of ownership and control over an artist’s likeness. However, estates should exercise discretion in enforcing their trademark rights only when it will preserve the artist’s values rather than cheapen or profiteer off them.

Suggested Readings

About the Author

Morgan Austrich is a Guest Writer at the Center for Art Law who is a rising undergraduate senior at New York University. She is studying art history on a pre-law track, and she is interested in looted and stolen art, repatriation, and intellectual property as it applies to digital and public art.

Select Sources:

  1. Dave Byrnes,“Frida Kahlo Corporation Files Suit for Trademark Violations over Anticapitalist Artist’s Image,” Courthouse News Service, accessed June 3, 2024, https://www.courthousenews.com/frida-kahlo-corporation-files-suit-for-trademark-violations-over-anticapitalist-artists-image/. ↑
  2. Case: 1:24-cv-01805 document #: 1 filed: 03/04/24 page, accessed June 3, 2024, https://www.courthousenews.com/wp-content/uploads/2024/03/frida-kahlo-image-complaint.pdf. ↑
  3. Byrnes, “Frida Kahlo Corporation Files Suit for Trademark Violations over Anticapitalist Artist’s Image.” ↑
  4. Byrnes, “Frida Kahlo Corporation Files Suit for Trademark Violations over Anticapitalist Artist’s Image.” ↑
  5. Industrial property rights include the right of publicity, defined as an “intellectual property right that protects against the misappropriation of a person’s name, likeness, or other indicia of personal identity.”“Right of Publicity,” International Trademark Association, July 30, 2021, https://www.inta.org/topics/right-of-publicity/#:~:text=The%20right%20of%20publicity%20is,or%20photograph%E2%80%94for%20commercial%20benefit. ↑
  6. “Rolling over in Her Grave: Frida Kahlo’s Trademarks and Commodified Legacy,” Center for Art Law, May 30, 2023, https://itsartlaw.org/2019/08/02/rolling-over-in-her-grave-frida-kahlos-trademarks-and-commodified-legacy/. ↑
  7. Tessa Solomon, “Florida Court Dismisses the Legal Dispute over Frida Kahlo’s Trademark,” ARTnews.com, September 30, 2021, https://www.artnews.com/art-news/news/frida-kahlo-trademark-dispute-dismissed-florida-court-1234605342/. ↑
  8. “Right of Publicity in Mexico,” Lexology, March 26, 2019, https://www.lexology.com/library/detail.aspx?g=c704e5a5-e7c6-4bfc-9c99-0731baf291a6#:~:text=The%20right%20of%20publicity%20over,date%20of%20the%20owner’s%20death. ↑
  9. Jo Lawson-Tancred, “Frida Kahlo Corporation Files Lawsuit for Trademark Violations,” Artnet News, March 7, 2024, https://news.artnet.com/art-world/frida-kahlo-corporation-files-lawsuit-for-trademark-violations-2446758#:~:text=The%20company%20was%20founded%20in,the%20artist’s%20identity%2C%20including%20her. ↑
  10. Byrnes, “Frida Kahlo Corporation Files Suit for Trademark Violations over Anticapitalist Artist’s Image.” ↑
  11. “15.2 Definition-Trademark (15 U.S.C. § 1127),” 15.2 Definition-Trademark (15 U.S.C. § 1127) | Model Jury Instructions, accessed June 12, 2024, https://www.ce9.uscourts.gov/jury-instructions/node/228#:~:text=A%20trademark%20is%20any%20word,that%20source%20is%20generally%20unknown%5D. ↑
  12. “Trademark Law: Upcounsel 2024,” UpCounsel, accessed June 3, 2024, https://www.upcounsel.com/trademark-law. ↑
  13. “Trademark Law.” ↑
  14. “Trademark Law.” ↑
  15. “US Guidelines for Artist,” Frida Kahlo, accessed June 3, 2024, https://fridakahlocorporation.com/us-guidelines-for-artist/. ↑
  16. Jessica Meiselman “Who legally owns the rights to an artist’s brand?” Artsy, accessed June 3, 2024, https://www.artsy.net/article/artsy-editorial-picassos-signature-kahlos-unibrow-legally-owns-rights-artists-brand. ↑
  17. Lawrence G. Townsend, Intellectual Property Lawyer, “Part 2: Vigorous Disputes over Frida Kahlo Intellectual Property,” Lawrence G. Townsend, Intellectual Property Lawyer, January 21, 2020, https://www.lgt-law.com/blog/2019/06/part-2-vigorous-disputes-over-frida-kahlo-intellectual-property/. ↑
  18. Frida Kahlo Corp. v. Pinedo, Civil Action 18-21826-civ-scola | casetext search + citator, accessed June 3, 2024, https://casetext.com/case/frida-kahlo-corp-v-pinedo. ↑
  19. “Frida Kahlo Corporation Files Suit,” Courthouse News Service. ↑
  20. Constanza Lambertucci, “Frida Kahlo’s Family Urges Puma to Stop Selling a Collection Inspired by the Artist,” EL PAÍS English, July 27, 2022, https://english.elpais.com/culture/2022-07-27/frida-kahlos-family-urges-puma-to-stop-selling-a-collection-inspired-by-the-artist.html. ↑
  21. Karen K. Ho, “Fast Fashion Retailer Shein Releases Collaboration with Frida Kahlo Corporation,” ARTnews.com, October 21, 2022, https://www.artnews.com/art-news/news/fast-fashion-shein-releases-frida-kahlo-corporation-1234644078/. ↑
  22. Byrnes, “Frida Kahlo Corporation Files Suit for Trademark Violations over Anticapitalist Artist’s Image.” ↑
  23. Jo Lawson-Tancred, “Frida Kahlo Corporation Files Lawsuit for Trademark Violations,” Artnet News, March 7, 2024, https://news.artnet.com/art-world/frida-kahlo-corporation-files-lawsuit-for-trademark-violations-2446758#:~:text=The%20company%20was%20founded%20in,the%20artist’s%20identity%2C%20including%20her. ↑
  24. Milton Esterow, “The Battle for Picasso’s Multi-Billion-Dollar Empire,” Vanity Fair, March 7, 2016, https://www.vanityfair.com/culture/2016/03/picasso-multi-billion-dollar-empire-battle#:~:text=In%201996%2C%20Claude%20Picasso%2C%20who,exhibitions%2C%20issues%20merchandising%20licenses%20for. ↑

 

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek a consultation with an attorney.

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