Many Frida Kahlo fans who want to honor the artist, drawn by her unbreakable spirit and her unique way to portray her pain on the canvas, visit exhibitions of her work or purchase posters and other items featuring her art. But in doing so, they may not be respecting her legacy or wishes, her relatives say.
A legal dispute over how her trademarks can be used is before a Florida appeals court this summer and could set precedents that affect other artists.
On one side of the dispute, which has been going on for years, are relatives of the famous Mexican artist; on the other is the U.S.-based Frida Kahlo Corporation (KFC), which has long owned the trademark rights for certain Kahlo-themed products sold in the United States.
In the middle is the public, said William Scott Goldman, a lawyer specializing in branding, “the people interested in seeing an exhibition or owning pieces that reference an artist who has been beloved by generations.”
These legal disputes create confusion and can pose a challenge to consumers, Goldman said, as people may have purchased a product thinking it represented the artist’s vision accurately but are then faced with doubts about whether that’s the case.
The origin of the disagreement
The dispute has been dragging on since 2018. That year, Kahlo’s grandniece, Mara Cristina Teresa Romeo Pinedo — who was granted power of attorney over the late artist’s property rights in 2003 — complained that FKC had granted Mattel the rights to make a Frida-inspired Barbie.
Romeo Pinedo argued that Kahlo would not have wanted to be represented with a doll that conceals her iconic unibrow. Mattel argued that it did obtain permission to produce the doll through the FKC and that it worked with them legally during development.
In the end, as a result of the lawsuit, the “Frida Barbie” was not sold in Mexico, although it was sold in other countries. Romeo Pinedo then attempted to terminate the 2005 contract that had initially allowed FKC to market some of its products in the United States, such as T-shirts, cellphone cases and tequila.
But the corporation, which insists it has the rights to market merchandise related to the artist in the U.S., has continued to come up with more products and events, including an immersive exhibition featuring photographs of the artist and some of her creations, which was to include a gift shop featuring Kahlo-inspired items.
Romeo Pinedo attempted to stop the exhibition — which was scheduled to be held in cities like Miami — by submitting in 2022 a letter of withdrawal in which she said the uses of Kahlo’s image should be determined by her family.
Frida Kahlo Corp. sued, alleging that the family is interfering with its business activities, according to legal documents seen by Noticias Telemundo.
“As the plaintiffs are the ones who obtained the copyright licenses to use Frida Kahlo’s images in the exhibit, this company asserts that the defendants do not have the right to publicity of Kahlo’s name or image in the U.S.,” the corporation states in one of the related documents.
The Florida appeals court must now determine whether the case brought by FKC can proceed, taking into account that Romeo Pinedo is a Mexican citizen and therefore not necessarily subject to U.S. jurisdiction.
Who are the ‘legitimate owners’?
“At the heart of the dispute is who the true or legitimate owners of the Frida Kahlo trademark are worldwide,” Joanna Andrade Lehmann, a senior attorney at EPGD Law representing Romeo Pinedo in the case, told Noticias Telemundo.
“The family maintains that if you’re going to commercialize Frida Kahlo’s image, it has to be in line with what she stood for and the values she defended,” he said.
“In my opinion, this will mark a turning point not only for our client, but for other artists or descendants of artists who are in similar situations,” the attorney said.
She said that if the Florida court decides it can act on jurisdiction, and possibly rule against Romeo Pinedo, then it will be “a precautionary measure for others” outside the U.S. that their trademark could be subject to the preferences of an American company.
“They have to take this as a precautionary measure and be more careful when doing business in the United States because, well, they may be submitting to U.S. jurisdiction without knowing it,” said Andrade Lehmann.
Noticias Telemundo attempted to contact the law firms representing Frida Kahlo Corp. but received no response. However, in a May hearing, the company’s legal team argued that the Florida appeals court should be able to rule on the situation because the withdrawal letter sent in 2022 was received on U.S. soil.
For Goldman, the attorney who’s an expert in branding, the situation is interesting because it raises a question: Today, when so many products from or related to artists are commercialized and many companies sell items that are not necessarily authorized by those artists or their families, what should be done?
“It’s like the debate about art versus commerce or the market, about the tensions that can exist between the advertising and intellectual property interests of corporations versus what certain individuals desire,” Goldman said.
“And if related trademarks are being challenged, it becomes even more complicated,” he added.
Because the normal purpose of a trademark is “to serve as a mark of quality and ensure that it is not diluted,” said Goldman, if there are disputes over which mark should be used, counterfeit products may proliferate.
For now, the issue of who owns the rights to Kahlo’s legacy remains, pending a decision by the appeals court on whether FKC’s lawsuit can proceed, even though Kahlo’s grandniece is not in the U.S. as a subject of its laws.
“Let’s hope there’s no jurisdiction, but if there is, it’s something that will have to be taken into account” for other international artists who want to market products or their image in the United States, Andrade Lehmann, the attorney representing Romeo Pinedo, said.
“It would become possible for a court in the United States to decide who owns the trademark,” she said. And “not all artists or artists’ heirs can afford to bear the costs of the local legal system” enough to fight the situation like Romeo Pinedo, she pointed out.
There is no deadline for a ruling, which the attorney said could result in the entire case being dismissed or in additional hearings being requested to discuss other possible outcomes.
An earlier version of this story was first published in Noticias Telemundo.