Many admirers of Frida Kahlo, who are moved by her unwavering spirit and her distinctive style of expressing her suffering on canvas, go to her exhibitions or buy posters and other art-related goods in order to pay tribute to the artist. However, according to her family, they could not be honoring her memory or wishes by doing so.
This summer, a Florida appeals court will hear a case involving the use of her trademarks that may establish precedents that impact other artists.
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Family members of the well-known Mexican artist are on one side of the long-running issue, while the U.S.-based Frida Kahlo Corporation (FKC), which has long held the trademark rights for some Kahlo-themed goods marketed in the US, is on the other.
According to branding lawyer William Scott Goldman, “the people interested in seeing an exhibition or owning pieces that reference an artist who has been beloved by generations” are in the center.
According to Goldman, these legal challenges can be confusing and difficult for customers because they may have bought a product believing it correctly reflected the artist’s vision, only to later question whether that was the case.
The origin of the disagreement
Since 2018, the controversy has continued to drag on. Mara Cristina Teresa Romeo Pinedo, Kahlo’s granddaughter, who was given power of attorney over the late artist’s property rights in 2003, protested that year that FKC had given Mattel the permission to create a Barbie that was modeled after Frida.
Romeo Pinedo contended that a doll that hides Kahlo’s recognizable unibrow would not have been her preferred representation. Mattel said that it collaborated with the FKC lawfully throughout the doll’s development and that it did receive authorization to manufacture the doll from them.
The Frida Barbie was eventually sold in other countries but not in Mexico as a result of the litigation. Romeo Pinedo then made an effort to revoke the 2005 agreement that had originally permitted FKC to sell some of its goods in the US, including tequila, T-shirts, and phone cases.
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The corporation, however, has persisted in developing new products and events, such as an immersive exhibition that featured photographs of the artist and some of her creations, along with a gift shop that featured items inspired by Kahlo. The corporation maintains that it has the right to market merchandise related to the artist in the United States.
Romeo Pinedo attempted to halt the show, which was set to take place in places like Miami, by submitting a notice of withdrawal in 2022, stating that her family should decide how to use Kahlo’s image.
According to court documents obtained by Noticias Telemundo, Frida Kahlo Corp. filed a lawsuit, claiming that the family was interfering with its business operations.
In one of the linked documents, the corporation claims that the defendants do not have the authority to publicize Frida Kahlo’s name or picture in the United States because the plaintiffs are the ones who acquired the copyright permissions to use her images in the show.
Given that Romeo Pinedo is a Mexican national and thus not necessarily under U.S. jurisdiction, the Florida appeals court must now decide whether the case filed by FKC can move forward.
Who are the ‘legitimate owners’?
Joanna Andrade Lehmann, a senior lawyer at EPGD Law who is defending Romeo Pinedo in the case, told Noticias Telemundo that the crux of the disagreement is who the real or legal proprietors of the Frida Kahlo trademark are around the world.
He stated that the family is certain that any commercialization of Frida Kahlo’s image must be consistent with her principles and beliefs.
“This, in my opinion, will be a turning point for our client as well as for other artists or artists’ descendants who are in comparable circumstances,” the lawyer stated.
“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,” she added, assuming the Florida court determines it has jurisdiction and may find against Romeo Pinedo.
Andrade Lehmann stated that they should be extra cautious and take this as a precaution when conducting business in the United States because they might be unknowingly subject to U.S. jurisdiction.
Noticias Telemundo made an effort to get in touch with the legal companies that represented Frida Kahlo Corp. but was unsuccessful. However, the company’s legal team contended at a hearing held in May that since the 2022 withdrawal letter was received on U.S. territory, the Florida appeals court ought to have the authority to make a decision on the matter.
The situation is intriguing to Goldman, the branding expert lawyer, because it begs the question: What should be done in this day and age, when so many artist-related or artist-produced goods are commercialized and many businesses sell goods that aren’t always approved by the artists or their families?
According to Goldman, it’s comparable to the argument over art vs business or the market, concerning the conflicts that may arise between corporate advertising and intellectual property interests and what some people want.
“It gets even more complicated if related trademarks are being challenged,” he continued.
According to Goldman, if there are disagreements over which mark should be used, counterfeit goods may become more common as a trademark’s typical function is to act as a mark of quality and guarantee that it is not diluted.
Even though Kahlo’s granddaughter is not in the United States as a subject of its laws, the question of who owns the rights to her legacy is still up for debate. This is because the appeals court has not to decide whether FKC’s lawsuit may move forward.
“I hope there isn’t jurisdiction, but if there is, it’s something that other international artists who want to market their products or image in the United States will have to take into consideration,” Romeo Pinedo’s lawyer, Andrade Lehmann, stated.
According to her, a U.S. court would have the authority to determine the trademark’s owner. She also noted that not many artists or artists’ heirs have the financial means to fight the case like Romeo Pinedo due to the expenses of the local judicial system.
The lawyer stated that since there is no timetable for a decision, the matter may be dismissed altogether or more hearings may be called to consider alternative outcomes.
This story was first published in Noticias Telemundo in an earlier version.
