Owning Frida Kahlo

JurisdictionUnited States,Federal
Publication year2021
CitationVol. 35 No. 4

Owning Frida Kahlo

Lario Albarrán

OWNING FRIDA KAHLO


Introduction


Her paintings demand—fiercely—that you look at her.
—Hayden Herrera1

Frida Kahlo is undoubtedly one of the most recognizable names in art history.2 Her work epitomizes Mexican national and indigenous traditions and is regarded as an uncompromising depiction of the female experience and form.3 But her fame goes beyond art galleries. Kahlo's face—brooding gaze, elaborate Mexican coiffures, and signature mono-brow—rivals the likes of Marilyn Monroe and Elvis Presley as one of the most recognizable faces in the world.4 captivating artists, scholars, fashion designers, and more, Kahlo is celebrated, studied, and commodified.5 In 2001, the U.S. Postal Service placed her image on a 34-cent stamp.6 In 2003, the Academy of Motion Picture Arts and Sciences awarded the biopic Frida two Oscars.7 In 2010, Google adorned its website with a doodle of her face.8 She returned to the big screen in 2017 with a cameo in Disney-Pixar's Coco.9 In fact, one can find Kahlo on shoes, cosmetics, socks, tequila, and even Barbie dolls.10 In 2018, Barbie manufacturer, Mattel, Inc.

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(Mattel) announced the Frida Kahlo doll on International Women's Day, and immediately caused an international uproar.11

The controversy behind the manufacturing of the Frida Kahlo doll revolved around who was entitled to use and license Kahlo's name and image.12 On one side, Mattel asserted it licensed Kahlo's name and likeness from the Frida Kahlo Corporation (FKC), the alleged owner of all rights related to Kahlo's name and identity in the United States.13 On the other side of the border, Kahlo's grand-niece, Mara Romeo (Mara), claimed that Mattel did not have the proper authorization to use Kahlo's image.14 The controversy reached a crescendo when a judge of the Superior Court of Justice of Mexico City granted a temporary injunction and ordered Mattel and FKC to stop using the "brand, image and work of the illustrious painter Frida Kahlo" without permission from the owner of the rights—Mara.15 In return, FKC sued Mara, claiming that she undermined and defamed the company and had illegally used their Kahlo trademark.16 To complicate matters even more, two artists filed separate lawsuits challenging the FKC's alleged trademark registration of Kahlo's name and likeness the following year in 2019.17 Both artists decided to go to court after FKC lodged takedown orders against the e-commerce platforms hosting the artists' work that included Kahlo's name and image.18

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The back-and-forth between the parties raises numerous questions: When does using a historical figure's name become trademark infringement? What law governs the issue—U.S. law or Mexican law? Who is the rightful trademark owner—FKC or Mara? What issues of race and gender are uncovered in "owning" Kahlo? And more importantly, who should own the rights to Kahlo's name and likeness? To answer these questions, this Comment builds on two existing bodies of work. First, the extensive literature, across various academic disciplines, that centers Kahlo as a vehicle of study.19 Namely, it expands on Laurel Salisbury's research on the litigation and commodification of Kahlo's trademark.20 Second, the work of legal scholars drawing on Critical Race Theory (CRT) to study racial investments and implications of intellectual property (IP).21 Positioned at the nexus of these two bodies of work, this Comment offers the first CRT examination of Kahlo's trademarks.

Part I offers a brief overview of Kahlo to contextualize the personal and financial significance underneath the legal disputes over possessing the rights to her name and likeness. With litigation on both sides of the U.S.-Mexico border, understanding the various parties and their respective suits sets the stage for the rest of this Comment. Part II presents a broad overview of the theory that undergirds trademark law. It then surveys domestic and international doctrines of trademark law. Doing so explains how international trademark treatises interact with a country's domestic trademark regime. Finally, Part III offers an introductory overview of CRT to problematize local and international trademark law.

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This Comment relies on the visionary insights of critical race theorists and is indebted to CRT, a strain of legal scholarship that challenges the ways in which race and racial power are constructed and represented in legal culture and, more generally, in society as a whole.22 CRT has not only challenged the substance of legal scholarship, it has also "contest[ed] the very language of mainstream legal and social analysis"23 arguing that a preference for neutral, disengaged, unraced, and unsexed voices in legal scholarship reifies a baseline that is both white and male.24 Challenging this preference, CRT embraces the notion of "grounding a scholarly voice in the material, aesthetic, emotional, and spiritual experiences of people of color."25 CRT also embraces storytelling as a way to interrogate the law and enrich the scholarly conversation.26 This Comment does precisely that—storytelling and CRT, in practice. Accordingly, Part III ends with a critical race analysis of international trademark law and offers ideas to look towards the future as a starting point to inspire further inquiry. This Comment challenges the legal structures that exacerbated Kahlo's commodification. Despite U.S., Mexican, and international doctrines of trademark and ownership, no party should hold exclusive rights of Kahlo's trademarks. Instead, Kahlo's name, likeness, and other trademarkable aspects should enter the public domain.

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I. From La Casa Azul to U.S. Federal Court: The Woman behind the Trademark


[He] does pretty well for a little boy, but it is I [] who am the big artist.
—Frida Kahlo27

Kahlo's status as an icon goes beyond art history circles and expands into fashion, Latinx, feminist, and LGBTQ+ communities as well.28 But that was not always the case. During her life, Kahlo and her work remained relatively niche outside of Mexico until the late 1970s.29 Part I sets the stage for the rest of this Comment by detailing Kahlo's humble beginnings in La Casa Azul to the current controversy regarding her trademarks. The three sections within Part I detail Kahlo's life, the posthumous rise of Fridamania, and the litigation over Kahlo's trademark.

A. Kahlo's Life: A Short History of the Mexican Anti-Capitalist Painter

Magdalena Carmen Frieda Kahlo y Calderón was born on July 6, 1907 in the house of her parents, La Casa Azul, in Coyocoan, Mexico City, Mexico.30 If asked, however, Kahlo always claimed to be born in 1910—the year the Mexican revolution began.31 Often announcing herself as a daughter of the revolution, Kahlo lived with a deep sense of independence and rebellion against ordinary social and moral habits. She was moved by passion and sensuality,

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proud of her Mexicanidad and cultural tradition—all mixed with a particular sense of humor.32 Unfortunately, her life was marked by physical and psychological suffering.33

Kahlo lived with chronic pain and other ills throughout her life, which were often incorporated in her paintings.34 She contracted polio when she was six, which crippled her right leg leaving it shorter, smaller, and with a limp for the rest of her life.35 In 1925, Kahlo, only eighteen at the time, was riding a bus when it was hit by a car.36 An iron handrail pierced her stomach through her vagina breaking both her back and pelvis and causing other severe injuries to her body.37 Given the limited medical technology of the time, even the treatments tortured her body including the need to wear steel orthopedic corsets and undergo more than thirty documented surgical operations.38 Her pelvic injury served as a prelude for her traumatic infertility.39 Kahlo had several abortions and miscarriages, one of which caused severe hemorrhaging.40 In 1953, gangrene led to the amputation of her right leg.41 Kahlo spent the rest of her life in a wheelchair.42 Nonetheless, Kahlo's pain was not the only thing that inspired her paintings.

Kahlo explained she experienced two great accidents in her life: one being the terrible bus collision, and the other being Diego Rivera.43 A subject of great fascination and speculation, Kahlo's marriage to Mexican muralist Rivera was

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passionate, tumultuous, and intense.44 Kahlo and Rivera, then the most famous modernist in the Americas, wed in 1929.45 Despite their marriage, Kahlo and Rivera engaged in multiple extramarital love affairs with Rivera encouraging Kahlo's romantic relationships with women.46 An unorthodox union, their marriage pushed through the jealousy and sadness despite Rivera's infidelities and Kahlo's affairs with women.47 The marriage met a breaking point when Kahlo discovered Rivera's affair with Cristina—Kahlo's younger sister.48 The pair divorced in 1939.49 Even so, their mutual passion and admiration for each other kept bringing them back to one another, and they remarried the following year in 1940 until Kahlo's death in 1954, at the age of 47.50

Primarily known for her many portraits and self-portraits, Kahlo channeled her physical and emotional personal experiences into her work which often centered symbolic portrayals of her physical and psychological wounds.51 Kahlo also found inspiration in the nature, artifacts, and politics of Mexico.52 Kahlo's artwork constantly touched upon social and cultural issues intermixed with her race and disability.53 She took her fiercely, anti-capitalistic politics and activism and joined the Mexican Communist Party in 1927.54 Later she would even harbor the Marxist revolutionary Leon Trotsky in her home.55 The political and social meaning of Marxism and her anti-capitalistic beliefs are readily seen within Kahlo's 1954 Marxism Will Give Health to the Ill.56 Kahlo's last public

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appearance before her death was spent participating in a...

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