FKC claims to have the sole rights to the trademarked words Frida Kahlo, Frida, and FK. What is most important for crafts sellers to know—at least for now—is to remove those trademarked words from any e-commerce site pages that include descriptions, names, or tags with any of those trademarked words. Otherwise they may find themselves in a situation similar to Michaela Kobyakov who had had 13 designs depicting Frida Kahlo removed from Spoonflower in mid-September after the site received an infringement notice from FKC. Eleven of the designs were the same print in various colorways and were Kobyakov’s bestsellers. Apparently the issue was using the full name “Frida Kahlo” as a tag on the listings. Many are asking: Does FKC really have the right to do this? The answer: It’s complicated.
One courageous artist, Nina Shope, is standing up for her rights and hoping to set a legal precedent for all other crafters. Shope is a fiber artist who has created a collection of Frida Kahlo art dolls and embroideries that she sells in her Etsy shop, SnapDragonOriginals. Her Etsy shop received a takedown notice from FKC and she decided to fight back.
Shope announced her lawsuit on Facebook and there were many threads in response. There are conflicting statements in the plethora of articles about who owns the rights to Frida Kahlo’s name so we went to Shope for answers.
Legal issues are never as black and white as the entertainment world paints them to be. Such is the case with Shope’s lawsuit. We reached out to her for comment. She said she’d love to discuss everything about the case, but her lawyer, Rachael Lamkin of Lamkin IP Defense, insisted that Shope avoid any interviews because she cannot talk about FKC or the merits of the case.
Next, we contacted Laurel Wickersham Salisbury who had written an illuminating article published in the Center for Art Law. Her article appeared two months ago and it’s aptly titled, “Rolling Over in Her Grave: Frida Kahlo’s Trademarks and Commodified Legacy.” Salisbury was generous with her time and held nothing back in discussing the legalities that surround the Kahlo lawsuits and the ins-and-outs of trademark infringement issues in general.
Frida Kahlo dolls created by Nina Shope.
Photo courtesy of Nina Shope
Copyright laws have changed over the years, and they vary from country to country, but at the time of Kahlo’s death in 1954, copyright protection lasted only 25 years. When that copyright expired, all rights went to the public domain.
According to Salisbury, it is advantageous for an artist’s heirs to trademark a name and the deceased artist’s signature in order to maintain integrity for the artist and their works. In the later years of Kahlo’s oldest heir—her niece Isolda Pinedo Kahlo—became too ill to manage the estate and signed over her rights to her daughter (Kahlo’s great-niece) Mara Christina Romeo Pinedo.
The Kahlo family claims that they, not the FKC, hold the rights and the final say in anything the artist’s name is licensed for. They are in a legal battle with FKC and Dorado over the anglo-appearance of the Mattel “Frida Kahlo” Barbie.
When the doll came out, the family felt it bore little resemblance to Kahlo, and insisted that Mattel did not have authorization to produce the doll without their permission. The doll has manicured, separated eyebrows, a hairless upper lip, light eyes, and a slimmed-down body. They argued that even her clothing is not accurate.
Kahlo’s family released the following statement about the doll: “Mrs. Mara Romeo, great-niece of Frida Kahlo, is the sole owner of the rights to the image of the illustrious Mexican painter Frida Kahlo.”
“Ms. Shope is committed to her goal of protecting other artists from FKC,” said Lamkin, “and any settlement would have to accomplish that goal.” In the meantime, all artists using the trademarked words Frida Kahlo, Frida, or FK are advised to remove them to avoid the risk of being flagged by FKC.
Frida Kahlo Barbie.
Photo courtesy of Barbie
Dorri Olds
contributor
If you do a little investigation on rights regarding images, likenesses, and even artists’ names, you’ll find the Mexican painter to be in very good company. Another well known artist and American icon, Georgia O’Keeffe, has similar protection on her images, name, and her likeness essentially watched over by the very powerful Georgia O’Keeffe Foundation, founded in 1989 with the specific mandate to expand and perpetuate her artistic legacy. This included a board comprised of some of Ms. O’Keeffe’s heirs, art scholars, and museum professionals and the foundation also established the museum for her work in Santa Fe, New Mexico. A large part of their work included a watchdog function that took care of copyright protection of all her paintings, drawings, writing, and sculptures. The foundation also worked with ARS (Artists Rights Society) and were vigilant in granting, denying, and policing all public and private reproduction of her images in any format regardless of who owned the works. I worked on a major exhibition of her work for the Milwaukee Art Museum (in her home state of Wisconsin) and even though one of the curators was the head of that foundation, we still had many permissions to obtain to create supporting material for the exhibition.
The images of Norman Rockwell are also subject to tight controls and oversights as well, so this recent example is not surprising at all. And probably the most Complete and stunning copyright control is exerted by the corporation that owns two US mouse-themed parks in Florida and California which so controls even its corporate name, I can’t type it here without permission. As a museum professional, I understand the issue and agree with the concern. It is indeed a slippery slope to allow anyone to appropriate imagery so clearly “belonging” to another and profit off of it. My advice is go see the real images…the power of the original will always be compelling.
I don’t know why anyone wants to copy her image. I don’t think she is attractive in any way. Just my opinion. Use your imagination and market a fictional image and no one will bother you.
I have a pretty strong opinion about this -if the intended goal of the artist is to make a profit off her images, they are objectifying her and turning her into a commodity for personal gain that she did not agree to, which is an overlying theme of women’s struggles since the beginning of time.
I think that so often we go to “is it legal, technically?” Instead of simply, “Is this right?” If somebody is asking you not to use their image or anything else for your own personal profit, don’t do it. I have been on the other side, fighting a legal battle to protect my copyrights and while the stress was horrible, the emotional toll was the worst, why would anybody want to put any of Frida’s family members in that situation? Have the artists involved learned everything they can about Frida Kahlo’s beliefs regarding capitalism, artists rights, commercialization etc? Would her beliefs support this fight to keep using her as a commercial object? I don’t know the answer to this. If yes, then maybe fighting is honoring her. If no, then legal or not, ethically selling these items is wrong and goes against “the inspirational message” the artists claim to be trying to share.
Frida Kahlo’s portrait shared a strong message with other women that shared her heritage and the physical characteristics that had been taught to be embarrassed about. As we can already see from a commenter she is even after her death getting insults. She found ways to use her personal struggles, which were many, to create amazing art. Now her legacy is going to move forward as a legal battle. What would Frida Kahlo do about all this?
Thank you Wendy for putting it so well. I have also wondered if she would be happy about her image being commercialized in this way
Thank you for this insightful piece of writing.
Thank you Wendy Sloan!
I side with the family on this one. I have always felt uncomfortable with the proliferation of copies of her art. The copies are made for profit–not just to honor her legacy. Otherwise the copiers would give everything away, right?
I find it interesting that most of the comments so far are from people that agree that reproducing her images is wrong, meaning reproducing her art is wrong. While She did do self portraits I don’t believe any of the above mentioned people have reproduced her art in any way. They have made their own art of her, her signature style. I believe it to be a celebration of what made her unique. She has now become a larger than life female icon.
In a way it’s like the people who are profiting, earning $ from images of the Notorious RBG. Culture icons are in a way free game. Think of all the ways Marilyn Monroes person/visage is used now days.
All the people commenting here don’t know one iota of the real story. Clearly, opinions are like b-tt-o-es. A little deeper researching would teach your opinionators that this corp is not mexican, that the owner is greedy, that he convinced the family to join him exclusively to profit off her image, that later the fam and he disbanded, that they are fighting in court and that this corp is harassing artists all over the world. It’s corporate takeover by somebody who called Frida ugly the first time he laid eyes on her face. The man is also involved in shady politics, pharma distribution, alcohol, and mind ya, it’s not even clear yet that the rights being claimed regarding her image are true and merited. You also might want to see the mess that is the USPTO has become. I can’t stand ignorant opinions. They are as good as poop. Let’s flush now.
I would have read this article… but I couldn’t see it. The light grey fonts on your site render it very difficult to see for people with contrast visual issues which includes a pretty significant percent of people. The fonts appear to blend with the white background and the page looks almost blank. What is the point of having a website if many people cannot even see it. The stylistics don’t matter if people can’t see it and it’s rather discriminatory against people with visual contrast disabilities. Dark font’s are much better and more readable and functional. I am an attorney and I read for a living. We will look back someday and see how ridiculous it is to allow the people in charge of the website to determine the darkness of the fonts used when it affects so many people who cannot deal with light contrasting type. Do you NOT want people to read your website? Absurd trend toward these light unreadable fonts. Make it stop.
Frida was a COMMUNIST-SOCIALIST! This means she was anti-capitalism, so she would absolutely abhor the gestapo-like tactics of those who claim exclusive “ownership” of her name and likeness to make money FOR THEMSELVES. Frida would rage against this as spiritual rape and demand that her name & image be free for all to enjoy the full blessings of, including making money.
The following has been extracted from Frida Kahlo Corporation website:
Guidelines for Artists Listing Products Depicting Frida Kahlo for Sale and Shipping within the United States of America
An artist’s listing of a product for sale and shipment into the United States using “Frida Kahlo” will likely not be considered infringing by Frida Kahlo Corporation so long as such use meets all of the following five requirements:
The product in question must be not readily identifiable without using the term Frida Kahlo. For example, “Portrait of Frida Kahlo.”
All the words in the artist’s listing are given equal dignity (for example, all words should have the same font and size as the name “Frida Kahlo”).
The description does not make use of the Frida Kahlo Corporation’s logo or font style in any way that is confusingly similar to the Frida Kahlo Corporation’s stylized trademarks.
A disclaimer is included in the description, (see disclaimer below) and
Such use is not trademark use (see examples below).
By way of example only, and not intended to grant a right to use Frida Kahlo Corporation’s intellectual property, the following uses followed by the disclaimer below would likely not be considered infringing (by Frida Kahlo Corporation) in a listing by an artist of a product to be sold and shipped in the United States of America, as long as the five requirements above are also met:
Frida Kahlo Inspired [Item], or Frida Inspired [Item]
[Artist Name] [Item], an image of Frida Kahlo
[Artist Name] [Item] artwork showing Frida Kahlo
Disclaimer:
“This Item is not an authorized or licensed product of the Frida Kahlo Corporation, and there is no business relationship between the seller and the Frida Kahlo Corporation. The Frida Kahlo Corporation has not endorsed, sponsored, or authorized its sale.”
A little research goes a long long way.