Mexican artist Frida Kahlo would perhaps be appalled to know that crafters who pay loving homage to her with their creative artwork are seeing their products yanked off of e-commerce sites like Etsy and Spoonflower. The reason for this recent flurry of problems stems from copyright infringement notices that are being issued by the excessively litigious Frida Kahlo Corporation (FKC).
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’s complaint, which was filed with a U.S. District Court in Colorado in June, alleges that FKC interfered with a prospective business advantage and used deceptive and unfair trade practices. Shope is also demanding that FKC contact Etsy to reverse the claim of copyright infringement.
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
Salisbury confirmed what we understood about the history of Frida Kahlo’s estate. The Mexican painter died without a will and because she had no children, everything was then left to her husband, Diego Rivera. He died three years later. The estate includes copyrights, trademarks, and the right of publicity. In accordance with Mexican law, Kahlo’s heirs, her nieces, inherited the estate.
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 Panama-based FKC was founded when Pinedo was approached by Venezuelan businessman Carlos Dorado. He encouraged Pinedo to go into a partnership and form the FKC. She agreed and legally transferred the existing U.S. trademark registrations to FKC which included Kahlo’s name. Despite what FKC seems to be claiming, they do not own her image. They only own the rights to words that they trademarked.
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.