The protection of artistic legacy as part of image rights
By Abril Neiman and Olivia Molina.
Using someone’s image without authorization is a violation of that person’s image. Not only does unauthorized use cause frustration, but such images may also be used under a concept or idea that is contrary to what the person represents.
A recent example is the famous Mexican artist Frida Kahlo. For years, the name and image of Frida Kahlo have been at the forefront of everybody’s mind. Her artistic legacy has been passed down through our Latin American culture from generation to generation and is becoming increasingly popular. As a result, many companies are launching products inspired by her image, but who can really make use of the artist’s intellectual property rights?
The painter Frida Kahlo died in Coyoacán (Mexico) in 1954, leaving her niece Isolda Pinedo Kahlo as her sole heir. In 2005, in agreement with the businessman Carlos Dorado, the company “Frida Kahlo Corporation” (hereafter F.K. Co.) was created. The rights for the commercial exploitation of her image were transferred to this company.
From that moment on, the characteristic face of Frida Kahlo began to travel around the world, appearing on many decorative items, toys, accessories, clothing, etc. Through the licenses granted by F.K. Co, the artist’s trademark, name and face found their way into many companies.
Years later, after the death of Isolda Pinedo Kahlo, her daughters and new heirs – María Cristina Teresa Romeo Pinedo and Mara de Anda Romeo – saw the new “Frida Kahlo” Barbie doll and tried to stop its commercialization. When F.K. Co. refused, the conflicts began.
In 2018, the artist’s heirs sued F.K. Co, claiming they were misusing Kahlo’s image. In the first instance, the Mexican courts ruled in favor of the Kahlo family, recognizing the exclusive rights to the artist’s image. This prevented unauthorized use for products inspired by her, including the sale of the doll in Mexico.
The case was taken to the Superior Court of Justice of Mexico City. On 7 December 2021, the court overturned the ruling, stating that the rights to the artist’s image belonged to the company because it had signed an agreement in its favor in 2005.
In other words, companies wishing to use Frida Kahlo’s image must strictly rely on the license granted by the holder of the artist’s intellectual rights: Frida Kahlo Corporation. This is the situation today.
We can clearly see the sensitivity required when using a person’s image, as even with the appropriate permission, it could be misused.
It is extremely important to always consider who is the rightful owner of the intellectual rights and that the exploitation of these rights always respects the creator’s artistic legacy.
For further information please contact: aneiman@ojambf.com and/or omolina@ojambf.com.
