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Part 2: Vigorous disputes over Frida Kahlo intellectual property

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.

In our last post, we talked about disputes over the right to use Mexican artist Frida Kahlo’s persona, image and name in 65 years after her untimely death. We introduced the parties involved and the dispute between Kahlo’s surviving relatives and the Frida Kahlo Corporation, or FKC, over ownership of rights to use Frida Kahlo’s image and name in the marketplace.

FKC versus Kahlo descendants

At least three lawsuits have involved FKC and the Kahlo family dispute over who owns trademark rights to Frida Kahlo’s persona commercially:

  • Kahlo’s relatives successfully obtained a temporary order early last year in a Mexican court to stop the sale there of Mattel Frida Kahlo Barbie dolls that were made in cooperation with FKC, reports The Art Newspaper.
  • Shortly thereafter, FKC and a related entity sued family members alleging trademark infringement through online sales of products using the Frida Kahlo brand. FKC also objected to a domain name and alleged false advertising, defamation and interference with its business relationship with Mattel. FKC also requested a declaration that it owns the Frida Kahlo trademarks. (The complaint is available on Westlaw at 2018 WL 4954902.)
  • FKC recently sued VersaLicensing for trademark infringement for offering licenses to Frida Kahlo branding as authorized by Familia Kahlo, a business the relatives formed to handle the trademark rights they claim. In contrast, FKC alleges that the family assigned all its Kahlo trademark rights to FKC.

Doll creator v. FKC

Widely covered in the media, on June 5, Nina Shope, an artist who sells Frida Kahlo dolls on Etsy, sued FKC and a related entity after FKC requested that Etsy take down Shope’s dolls as infringing. This is an interesting twist on the FKC-Kahlo family dispute.

World Intellectual Property Review reports that Shope in her suit takes the side of the family in the dispute with FKC, alleging that the family’s position is that its transfer of any rights to FKC was not complete and that FKC did not adhere to their agreement. WIPR cites Familia Kahlo as saying in a statement that it has the trademark rights, which it has revoked from FKC.

Shope also alleges that her artwork does not infringe and that her use of Kahlo’s image and name is fair use, necessary to identify the “historical figure,” according to WIPR, which also cites FKC as doubling down on its claims of infringement in response. Shope’s suit also asks the court to cancel a Kahlo doll trademark owned by FKC.

ARTnews reports that Shope also claims the defendants interfered with “prospective business advantage” and engaged in “deceptive and unfair trade practices.” She is requesting that the court order FKC to ask Etsy to restore her dolls to the marketplace.

ARTnews cites Shope’s lawyer as arguing that it cannot be a trademark violation to merely use a historical figure’s name to identify an associated product. The complaint says that there cannot be a violation when the name is without “artistic relevance to the underlying work” or if the title does not mislead the public as to the “source or the content of the work.”

Those with interest in intellectual property rights will closely watch these disputes.

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