From Picasso’s Signature to Kahlo’s Unibrow, Who Legally Owns the Rights to an Artist’s Brand?
Photo by Alfredo EstrellaA/AFP/Getty Images.
In March of this year, Mattel released a publicly claims to own “the trademark rights and interests to the name Frida Kahlo worldwide.”
Shortly after the Barbie’s launch, Kahlo’s great niece filed a lawsuit in Mexico alleging that she, as partial owner of Kahlo’s likeness, had not approved the licensing. The suit also pointed to the doll’s lightened skin, thin frame, light eyes and overall lack of cultural awareness as being inconsistent with Kahlo’s true identity. “It should have been a much more Mexican doll...dressed in more Mexican clothing, with Mexican jewellery,” Mara Romeo, Kahlo’s great-niece, told Agence France-Presse. A Mexican court agreed with the heir’s arguments, at least preliminarily, and instituted an injunction which would ban sales of the doll for the duration of the case. The Frida Kahlo Corporation subsequently countersued.
There are other contemporary products that seem to clash with Kahlo’s actual life experience. A communist and alcoholic, Kahlo has graced the sides of tequila bottles and pre-paid Mastercards, noted David Meyer in Fortune. The court fight over the Kahlo Barbie exemplifies how tangled the legal questions around who owns an artist’s brand can be, especially after the artist themselves has died. What we think of as an artist’s brand—their name, identity, and perhaps even elements of their style—is legally comprised of multiple sets of rights with varying expiry dates. Depending on the jurisdiction in which those rights are enforced, ownership of each set of rights can be fragmented among heirs and, more significantly, may exist only to the extent they are used.
The core legal right that gives an artist the ability to commercially exploit their name, image, likeness, signature, or other unequivocal aspects of identity, is broadly known as the “right of publicity.” Publicity rights are typically governed by the jurisdiction where the individual resided in at the time of their death, although there are exceptions to that rule. The jurisdiction that governs publicity rights matters quite a bit, given the fact that they can vary significantly country to country and even state to state.
When an artist dies, in some jurisdictions, publicity rights can be passed onto heirs or to third parties. But in France, for example, such rights are not transferable and therefore would pass to the artist’s natural heirs after death, even if the artist had left other property to another individual. In some places, publicity rights die with the artist. Still, in other countries, only certain elements of publicity rights extend beyond the life of the artist, and only then for a set period of time. In Mexico, the law protects only the “portrait” of an individual for fifty years after death.
But publicity rights are not the only piece of an artist’s brand’s legal puzzle. Trademarks on names or other distinctive identifiers may be granted separately in each country the mark is used in, and if properly maintained, can last forever. Although trademarks are generally required to remain in use for the specific goods or services for which the proprietor seeks protection over, they are freely assignable and thus become a more reliable solution for those looking to commercialize a name. Aside from the obvious economic incentives, this ephemeral nature of a trademark encourages commercialization of an artist’s name or identifiers.
But a child using their given name of Picasso is separate from granting of the right to associate the artist with another brand or product. In the late 1990s, one of Picasso’s sons, Claude, who was also the court-appointed executor of his estate, licensed the Picasso trademark (including the artist’s name and signature) for use in connection with a line of French automobiles by Citroën. Claude faced a lawsuit from Marina Picasso, Pablo’s granddaughter, shortly after news of the Citroen deal became public. She famously noted, “I cannot tolerate that the name of my grandfather and of my father be used to sell something as banal as a car.”
In comments to the New York Times, Claude’s lawyer, Jean-Jacques Neuer, pointed to the mass of knockoff Picasso-branded products and noted that the estate—the rightful holder of the trademark—should push back by licensing it commercially. Indeed, he noted a critical distinction between maintaining trademarks and publicity rights. The former relies on continued use of the mark in commerce, otherwise it can be lost. “If we don't use it, someone else will,”' as he put it.
While Picasso and Kahlo shied away from most commercial collaborations and branding efforts during their lifetime, that isn’t always the case for contemporary artists.
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