Trademark Violations? Frida Kahlo Corporation Fights Third-Party Copies
Frida Kahlo’s iconic image sits at the heart of a family trademark battle. As we attempt to legally protect one’s legacy via trademark, do we get closer to or further from preserving something as fleeting as artistic essence? How do we safeguard morality in the face of commodification?
Attribution
Frida Kahlo Woman Portrait by BiancaVanDijk on Pixabay
Among Salvador Dalí’s “aggressive” mustache, Jean-Michel Basquiat’s trompe l’oeil haircut, and Frida Kahlo’s iconic unibrow, Kahlo’s brows arguably stand out as the most emblematic feature of an artist. Kahlo’s physicality is inseparable from her artistic identity. Her self-portrait is fundamentally intertwined with her anticapitalist values and embrace of counterculture. The now ubiquitous “Frida Kahlo” brand is central to a recent trademark battle among her surviving family members—a legal struggle that underscores the tension between Kahlo’s personal values and the global commodification of her legacy.
The fight for Kahlo’s legacy began in 2004, when the heirs to Kahlo’s property rights formed the Frida Kahlo Corporation (“FKC”) with the goal of “educating, sharing, and preserving [the artist’s] art, image, and legacy through worldwide commercialization and licensing.” Though seemingly positive, trademark protections may in fact dilute the artist’s image, raising doubt that legal heirs are best equipped to uphold their familial legacy. Does trademark protection work to uphold the artist’s brand against infringement, or is artistic trademark merely an artifice of its own?
In Frida Kahlo Corporation v. Mara Christina Romeo Pinedo, familial discord intensified the trademark dispute. Tensions flared between FKC and Mara Christina Romeo Pinedo, Kahlo’s great-niece and a former member of the corporation. The case turned on FKC’s namesake Barbie Doll, part of Mattel’s Inspiring Women series. FKC argued that its efforts to trademark Kahlo’s image and name were necessary to prevent unauthorized exploitation by third parties. Pinedo, representing “the Family,” publicly criticized both Mattel and FKC for what she claimed to be a commodified version of the artist’s essence. She argued that FKC’s beautification of the doll’s features (including the famous unibrow) was a betrayal of Kahlo’s rejection of conventional beauty standards and anticapitalist values.
In response, FKC filed suit for trademark infringement under the Lanham Act. The Lanham Act, a trademark statute, has been interpreted to provide redress for “mutilation” of an artist’s works. In Gilliam v. American Broadcasting Company, the court recognized the incompleteness of the Act as a protection of the artists personal and moral rights, beyond property rights. The European analogue of droit moral, or “moral rights” of the creator, was raised in sharp contrast to the Lanham Act. Under the Lanham Act, trademark law primarily addresses commercial protection against unfair competition, rather than safeguarding the integrity of the artist’s legacy. Though Gilliam precedes Frida Kahlo Corporation by over forty years, the latter case draws attention to the persistent limitations of the act in adequately protecting artistic essence.
FKC was ultimately unable to serve process on the defendant, leaving the matter largely unresolved. Since then, FKC has continued to proliferate commercial collaborations with companies including Ulta Beauty and Vans, further embedding the artist’s image into the global consumer market. Kahlo’s legacy doesn’t stand alone among the artistic icons whose images are widely commercialized. For example, Picasso’s name and signature have been used in connection with a line of French automobiles by Citroën. This divergence raises important questions about how art, personal identity, and ideology are reshaped in the marketplace.
The identity of the artist tends toward the ephemeral, which may serve to explain the struggle to apply trademark law. Unlike more static forms of intellectual property, the intangible has proven difficult to protect. Kahlo’s identity risks being subsumed into the mainstream culture she so vehemently avoided, raising questions of morality in light of antithetical values.
If we question the legal framework imposed by the Lanham Act, we may come to doubt trademark law in its current form. Does the law adequately protect the legacy of an artist like Kahlo while still acknowledging the realities of the modern market? Is the concept of droit moral better suited to protection of artistic legacy? Ideally, the Lanham Act, as “a living thing” could be adapted to better address the complexities of artistic identity in the context of commercial and moral tension. While FKC and Kahlo’s descendants remain at a legal stalemate, the evolving nature of trademark may allow unexpected solutions.