In 2018, when Mattel introduced the Frida Kahlo doll as part of its “Inspiring Women” collection in the Barbie portfolio, some consumers saw a strong feminist statement, but many observers familiar with Kahlo’s life and work saw a commercial exploitation the artist would have hated. Indeed, Kahlo was a sharp critic of American capitalism and the kind of bourgeois sensibility that would presume to commoditize a plastic gloss on her complicated and painful story—let alone a false rendering of her likeness and traditional Tehuana dress.
In rejecting the label “surrealist,” Kahlo said that her famously tortured self-portraits (e.g., The Broken Column) were not expressions of haunting dreams but depictions of her reality—a reality largely defined by a shattered body. Kahlo was born with polio and then, at the age of eighteen, was impaled by an iron handrail when a trolley crashed into the bus she was riding in Mexico City. The near-fatal accident foreclosed her intended career as a physician, and Kahlo spent months of cast-entombed recovery painting in bed by means of an easel her mother rigged to allow her to work in a supine position. With the aid of a mirror also suspended nearby, her own face became her most consistent model.[1]
Although Kahlo said that she frequently painted herself because she was so often alone, it is paradoxically this abundance of self-portraiture that makes her, perhaps, the most widely recognized visual artist in the world. Relatively obscure between her death in 1954 and the 1983 biography by Hayden Herrera, Frida Kahlo’s story and artworks now comprise, for better or worse, a brand—and one that her family is trying to regain control of to prevent inappropriate applications like Kahlo Barbie.
Whether Frida Kahlo herself would have scorned the notion of becoming a brand, it is the inevitably careless uses of a famous artist’s name and likeness that emphasize both the value of protecting intellectual property and of having that IP managed by thoughtful stewards. Most often, this means family heirs, and in the eyes of Kahlo’s grandniece Mara Pinedo, the Frida Barbie was among the more offensive breaches of an already souring arrangement between Familia Kahlo, a Mexican entity, and Frida Kahlo Corporation (FKC), a Panamanian entity. [2]
The roughly thirty years between Frida Kahlo’s death and the explosion of interest in her story and work—the term Fridamania applies—emphasizes the role of trademark as a means for family heirs to control the artist’s legacy. In Kahlo’s case, the copyrights on the paintings have either expired or are controlled by other parties, and the right of publicity under Mexican law expired in 2004. But because trademarks are indefinitely renewable, these become the IP crown jewels that need to be enforced and protected.
In 1954, all rights descended under Mexican law to Kahlo’s niece, Isolda Pindeo Kahlo and subsequently to her daughter Mara Pinedo, presently owner and officer of Familia Kahlo. Under the terms of a 2005 agreement, Familia Kahlo transferred trademarks to FKC but states in court briefs that they conditioned FKC’s authority to make licensing agreements upon obtaining permission from the family for every deal. Oscar Gomez, attorney for the family tells me via email:
Over time, FKC repeatedly engaged in the commercial use of Frida Kahlo’s name, image and likeness without consulting the family or obtaining the approvals required under the 2005 agreement. Products and partnerships were launched — including consumer goods the family and general public found culturally insensitive or inappropriate — without the family’s knowledge or involvement. These actions were in clear disregard for the approval process intended to protect Frida Kahlo’s legacy.
Based on the alleged breaches of the 2005 agreement, Familia Kahlo seeks to revert all trademarks back to its exclusive control, and this matter is presently being litigated in Spain and Panama. “In Spain, the court is focusing its review on whether certain European trademarks were wrongfully revoked and otherwise who holds rightful ownership. In Panama, there is a separate legal action to resolve the corporate control of the FKC entity,” says Gomez.
Litigation in Florida Federal Court
Meanwhile, in 2022, FKC filed a lawsuit in a Florida district court alleging that Pinedo and Familia Kahlo were liable for tortious interference by attempting to prevent what FKC argues are its legal rights to exploit the marks it claims to own. The litigation was triggered by cease-and-desist notices sent by Familia Kahlo advising four FKC licensees of the ongoing litigations abroad and notifying these parties that they could be held liable for trademark infringement. Only two of the four letters were directed at U.S. entities operating in Florida, and all four were written and sent by Familia Kahlo general manager Alfonso Durán.
Without addressing the merits of FKC’s claim, the district court held in 2023 that it lacked personal jurisdiction over defendants Pinedo and Familia Kahlo—Pinedo is a Mexican citizen with no ties to the State of Florida—under both corporate shield doctrine and comportment with due process under the 14th Amendment. On that basis, the district court dismissed FKC’s claims, and in May 2024, the plaintiff filed an appeal to the 11th Circuit. In response, the family’s brief states, “Plaintiffs are attempting to bypass the laws of Mexico and the legal disputes ongoing in Panama and Spain by filing this action in Florida to try to gain some form of authentication for their false claims to the intellectual property rights of the Frida Kahlo mark.”
It would be a major project (and one well outside my wheelhouse) to attempt to unpack the contractual details applicable to trademark ownership in several jurisdictions. But Gomez states that “[The Spanish and Panamanian] proceedings could resolve key questions of ownership and standing before the U.S. case ever reaches the merits.” Consequently, he theorizes that FKC may be forum shopping, hoping that a U.S. court might be a more favorable venue to find that it rightfully controls the Kahlo brand. But unless the 11th circuit reverses, finding that the lower court erred in its holding on personal jurisdiction, the core matter of ownership will presumably be resolved outside the U.S.
Both Licensing and Enforcement at Stake
In addition to licensing uses of the Kahlo brand that both the family and the public find inappropriate, FKC also engages in legal enforcement actions against parties who may not be making inappropriate uses. For instance, in a long post about these ongoing disputes, Laurel Wickersham Salisbury for Center for Art Law, describes FKC’s action against folk artist Nina Shope. “Shope handmakes a variety of embroideries and dolls, many of which represent Frida Kahlo and are sold [on Etsy] using her name,” Salisbury writes.
Shope’s derivative works based on Kahlo’s paintings are legal if the paintings have fallen into the public domain, but whether a court would find that her use of Kahlo’s name, an unavoidable description, constitutes trademark infringement is a separate question. From a cursory review, I am not certain Shope’s use constitutes infringement under U.S. law, but more important for the moment is whether FKC or Familia Kahlo has the right to make that determination and pursue (or not) legal remedy.[3]
Two Different Futures
A recurring theme in Kahlo’s self-portraiture includes several depictions of herself as divided, as two Fridas simultaneously occupying two realities laden with symbols of her fraught and chronically painful life. In that light, it is notable that today the Frida Kahlo brand is divided between an entity that appears willing to capitalize on any use without regard to appropriateness and a family seeking to keep “Fridamania” within the bounds of respect for who Frida was rather than commoditizing any Frida people wish to see.
Although the U.S. case is currently procedural and one that may never affect ultimate control of the Kahlo brand, it raises important considerations for well-known artists and families contemplating management of a potential legacy. “We see it happening more frequently now that artists are seeking to reclaim the rights to their works and their brands from the parties who they hoped could help them grow,” says Gomez. Although Frida Kahlo’s biography is unusual, her posthumous fame, more than a half century since her passing, reveals the need for balancing legacy management between exploitation and reverence.
[1] Frida – documentary by Carla Gutierrez
[2] As a result of litigation in Mexico, the court there enjoined sale of the doll pending further proceedings.
[3] Notably, trademark, unlike copyright, is a use-it-or-lose it IP right. Failure to enforce can be a basis for loss of the mark.