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Part 1: Commercial rights to name and image of artist Frida Kahlo

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Her image is unmistakable. Black hair usually pulled away from her face. Dark, thick eyebrows. Serious, unsmiling expression. Iconic Mexican painter Frida Kahlo lived with disability and controversy throughout her short, but dramatic, life. She died at 47 in 1954, leaving behind a legacy of surrealistic paintings sometimes described as folk art.

Several legal issues have arisen regarding the ownership of Kahlo's persona and brand. Matters of trademark, licensing, right of publicity and online infringement takedowns are all coming to a head.

Kahlo dolls and disputed IP rights

Current disputes over Kahlo's image concern three major parties:

  • Nina Shope, a Denver artist who conceives of and makes a variety of detailed folk-style fabric dolls in the image of Frida Kahlo and sells them in her online Etsy shop
  • Frida Kahlo Corporation or FKC, a Panamanian corporation set up by a Venezuelan businessman living in Florida that claims trademark rights to Frida Kahlo's image and name
  • Relatives of Kahlo in Mexico who claim ownership of intellectual property rights related to Kahlo's image as her descendants

Multiple media sources have reported about the disagreements between FKC and Kahlo's family. FKC and Kahlo's relatives dispute ownership of the right to use Kahlo's image and related trademarks. FKC says that the relatives gave their rights to the corporation and the family says that it only meant to enter into a limited contract with FKC, not to transfer all its intellectual property rights in Kahlo's persona to FKC.

Right of publicity

We often write in this space about the right of publicity, meaning a person's exclusive right to use his or her own person's image, voice, signature, likeness and overall persona commercially. Rights of publicity vary from state to state and even from country to country. An important issue is whether publicity rights survive the death of the subject, which varies among jurisdictions.

At first glance this would seem to be the main issue involved, but it is apparently not the focus of current disputes. While various writers come to different conclusions about the survival of Kahlo's publicity rights, the author of an Artsy article concluded that any publicity rights that survived Kahlo's death only lasted for 50 years under Mexican law.  

In Part 2, we will tell readers about lawsuits over the right to use Kahlo's image commercially.

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