Why a California Artist Is Taking the Frida Kahlo Corporation to Court

Frida Kahlo is everywhere. The iconic Mexican artist's defiant red-painted lips, knowing gaze and proudly worn unibrow framed by serpentine braids can be seen on the front of countless mugs, socks, key rings, mouse pads and pieces of jewelry.

Makers sell these products in stores and on websites like Etsy, where the search term "Frida Kahlo" brings up nearly 20,000 results.

But the Frida Kahlo brand is big business, too. Multinational corporations like Mattel and Converse are also cashing in on the iconic artist, marketing products like the Frida Barbie doll and Frida sneakers, respectively.

And now, some small-scale artisans are finding themselves in a head-to-head fight against those corporations, a confrontation that raises complex questions about ownership of cultural heroes in the digital age.

One of these artists is Cris Melo. The Brazilian-born painter lives in Nice, a small town in Lake County, and has been making whimsical portraits inspired by Frida Kahlo's image for the past 20 years.

Melo says she isn’t a particularly religious person. But she feels very attached to Kahlo and sometimes even offers up a prayer to her.

"I tell her, I'm not doing this for me. I'm doing this for you," she says. "So stand with me. Hold my hand. Because it’s scary."

Melo is timid and elfin, with dark eyes and a wide, expressive mouth. She certainly doesn’t look like the type of person who’d launch legal proceedings against a powerful corporation. Yet she’s suing the company that claims to own the Frida Kahlo brand.

Making an Icon

Though the Mexican government has declared Kahlo's works part of the country's national heritage, and people wait in line for hours to see exhibitions of the artist's work at major museums around the world, she wasn't at all well-known during her lifetime.

Kahlo spent years living in the shadow of her husband, the monumental Mexican muralist Diego Rivera. It wasn’t until the 1970s, more than 20 years after her death, that Kahlo biographies began to appear, lifting her out of obscurity.

Her paintings started to fetch millions of dollars at auctions. Then, in 2002, came the release of the "Frida" biopic, starring Salma Hayek.

The movie helped amplify the Kahlo brand; it became synonymous with feminine strength in the face of adversity, as well as outsider-underdog power.

"She was a female artist, and Mexican, dark-skinned, disabled and queer," says Circe Henestrosa, curator of a major Kahlo exhibition traveling to San Francisco’s de Young Museum in March. "Frida's persona and ethos represents and gives hope and a voice to all these different, diverse groups."

The Big Business

Even before the movie came out, Melo was among the many artists who not only identified with Kahlo, but also found a way to capitalize on all the Fridamania. In 2001, after noticing Kahlo-inspired products on eBay, Melo set up her own online storefront, featuring her Kahlo-like paintings printed on a range of everyday goods, like magnets, T-shirts and tote bags.

"I mean, I would refresh the computer every time and there would be a new bid," Melo says. "It was amazing. It was so good."

But then something changed.

Around 2004, Carlos Dorado, a Venezuelan businessman, also saw a big economic opportunity.

Dorado teamed up with the artist’s niece, Isolda Pinedo Kahlo, and eventually her daughter, to launch the Frida Kahlo Corporation (FKC), which registered dozens of Kahlo-related trademarks and set about licensing a pile of merchandise.

FKC's portfolio includes products like Frida Kahlo tequila, Frida Kahlo makeup, Frida Kahlo Tweezers — an odd choice given the artist's iconic unibrow — and the aforementioned Barbie doll and Converse sneakers.

"It’s an honor to have a piece of Frida Kahlo that will inspire you day-to-day," FKC spokeswoman Beatriz Alvarado told NPR in a 2018 interview about the Kahlo Barbie.

While the company was making mega-deals with the likes of Mattel, they were also trying to get individual artists like Melo to pay them for the right to sell their Kahlo-inspired art online by entering into licensing partnerships with online marketplaces.

Alvarado declined to speak directly with KQED for this story, though she did respond to a some questions by email.

"FKC has a legal obligation to police its trademarks," Alvarado said in her email. "Otherwise, FKC will lose its trademark rights."

Takedown Troubles

That didn’t sit well with Melo.

"We have been selling Frida all these years with no problem," she says. "And now they want us to pay them to sell Fridas. This is our work. We don't have to."

So she ignored payment-request notices from the company. But in October 2011, she received a message from Zazzle, one of the online marketplaces where she sells her work, concerning a Kahlo-inspired greeting card she had displayed on the site.

"They sent me an email saying that I was violating trademarks, and they were going to take it down," she says.

This was the first of many such emails, promptly followed by takedowns. But only some of her Kahlo-centric creations were being removed, which Melo says seemed frustratingly arbitrary.

"I was mad from the get go," she says.

It wasn’t just Melo's finances that took a hit. Her health did, too. She felt depressed and helpless.

"I stopped painting Frida for a while," she says. "Because if this is going to be happening, why am I going to paint more?"

Melo's situation was far from unique. On social media, she discovered many other artists dealing with similar frustrations.

Alvarado, the FKC representative, in an email said her company’s mission is to “protect the Frida Kahlo legacy.” And she denied taking artists' work down.

Technically that’s true.

FKC doesn't do the takedowns directly. The company uses a "brand protection agency" called Red Points to scout the web for potential trademark violations. Its technology then alerts popular online artisan marketplaces like Zazzle and Redbubble when it identifies red flags. And then those sites take the work down.

"We're not in a position to be the legal arbiter on the platform," says Redbubble CEO Barry Newstead, adding that he trusts rights holders like FKC to do their due diligence. "It is their responsibility to ensure that they are actually, you know, requesting stuff to be taken down that is is actually infringing," he says.

Taking It to the Courthouse

But sometimes the technology takes content down that’s not actually an infringement.

FKC does not own all things Frida Kahlo — just material in the product lines that they’ve trademarked. And that doesn’t necessarily include work by Melo and other artists.

That's why Melo is now suing FKC in federal court in San Francisco, alleging that using the name "Frida Kahlo" to describe her paintings of the artist does not infringe on any of the company's ownership rights.

"These are my images from my imagination," Melo says. "I'm painting a public figure. I don't know what I'm doing wrong."

And, in fact, FKC agrees — sort of. In legal documents, the company acknowledged that Melo's work was removed in error and was then promptly reinstated. But it then changed its position, arguing that some of the takedowns may have been legally justifiable. Regardless, Melo says she is still receiving takedown notices.

"Sometimes, in the course of policing unauthorized use of FKC’s trademarks, Red Points may accidentally capture non-infringing use of the Frida Kahlo brand by artists that are describing their artwork," FKC's Alvarado said in an email. "The Frida Kahlo Corporation has always been willing to work with these listings to have them modified and adapted to honor Frida Kahlo without infringing FKC’s trademark rights."

Celebrity Brands

Many celebrities, both living and deceased, are at the center of squabbles over unauthorized commercial uses of their brands. Besides Kahlo, there have been disputes in recent years involving actor Humphrey Bogart, civil rights activist Rosa Parks and graffiti artist Banksy, to name but three.

The proliferation of cases isn't surprising. Many celebrity brands, from Marilyn Monroe to Bob Marley, are worth tens of millions of dollars. And the laws governing intellectual property are complex and often exceedingly difficult to understand.

But some legal observers say Melo's case points to a larger issue.

"It really highlights the fact that small artists, they're held captive to online marketplaces, and that corporations, such as the Frida Kahlo Corporation, can send numerous and maybe improper takedown notices without much oversight from the platform," says Louise Carron, who runs the Center for Art Law, a research and education nonprofit based in New York.

"I think one of the most important issues raised by this case is a general trend towards trying to commercialize and own famous people and historical public figures," adds Jennifer Rothman, professor of law at Loyola Law School in Los Angeles. "And that raises some very complicated questions about what limits there are on the public's ability to engage with these people, as well as for artists to refer to them."

That’s why some artists like Melo are testing that power in the courts, in an effort to continue pursuing their livelihoods and keep important public figures, like Frida Kahlo, within the public realm.

A federal judge will hear Melo's case at the end of the month and decide whether to throw the case out or force FKC to stop its agents from issuing takedown notices to Melo.

"What I would like as an artist is for us to go back to being able to paint Frida and sell her just the way we did before the Frida Kahlo Corporation was formed," Melo says. "I just want us to be free to continue doing what we did without harassment."