Has Mattel the right to make the Frida Kahlo Barbie? A tale of unibrows and image rights

Has Mattel the right to make the Frida Kahlo Barbie? A tale of unibrows and image rights

Source image: http://www.revistavanityfair.es/

Mexican painter Frida Kahlo is undoubtedly one of the most influential artists of the 20th century. More than 60 years after her death, she is still an icon of the feminist movement and a source of inspiration for many people around the world.

In recognition of her legacy and to commemorate the International Women’s Day 2018, Mattel has announced the release of the Frida Kahlo Barbie as part of the series called “Inspiring Women”. However, even before the launch has taken place, the doll has been sharply criticized, mainly because of the lack of permission to use Frida’s image.

According to Mara Romeo, Kahlo’s great-niece and alleged owner of the rights, Mattel did not obtain proper authorization to use Frida’s image rights. Mattel, on the other hand, claims that it obtained a license to produce the doll from the Frida Kahlo Corporation, a Panamanian corporation founded in 2005. The latter, in turn, said that it received the rights from the painter’s niece, Isolda Pinedo Kahlo, who died in 2007.

Whoever is the lawful owner of Frida Kahlo’s rights, the key question is whether or not Mattel needs permission to produce and commercialize the controversial Frida Kahlo Barbie. The answer to that question is, nevertheless, not straightforward and depends on several factors. A quick glance at the relevant Mexican legislation will shed some light on this issue.

The right to one’s own image is a right of personality recognized in the Mexican Federal Constitution in terms of the interpretation of the fundamental right to privacy. Additionally, the Federal Civil Code provides for a concept of moral damage as an injury or harm a person suffers in feelings, affections, beliefs, dignity, honor, reputation, private life, physical or public perception. An economic compensation for the damages caused may be claimed. This right is not transferable.

 

The Federal Copyright Law provides for a limited right to one’s own image which protects individuals against use of their portraits displayed in photographic works. This right can be transferred and is protected during the life of the owner and 50 years more after his or her death. Unlike the right to moral damages, this right can be enforced post mortem by the assignees of successors in title.

The Law on Civil Liability for the Protection of Private Life, Honor and Self-Image, a local law applicable in Mexico City, entered into force in 2006. Besides introducing the concept of “moral patrimony”, it offers protection and causes of action when the image rights of an individual have been infringed.

Accordingly, the Mexican law system offers a number of tools to protect the right to one’s own image. However, it is not immediately obvious that Frida’s successors are legally entitled to prevent Mattel from producing the Frida Kahlo Barbie on the basis of the above provisions. In fact, since actions for moral damages have to be brought by the owner of the rights himself, Frida’s successors could not rely on this action to prevent Mattel from making the doll. Also, even when the limited right to one’s own image can be enforced post mortem, its protection is limited to a period of 50 years after the owner’s death.

Assuming that Frida Kahlo had indeed transferred her rights for the use of her image to her family, the successors would continue holding those rights after her death. However, it is uncertain whether her image rights would still be validly enforceable, at least under the provisions of the Federal Copyright Law. A literal interpretation would lead to the conclusion that Frida’s successors could no longer oppose the use of Frida’s image, resulting in Mattel being allowed to make the Frida Kahlo Barbie without having to ask for authorization.

Hopefully, the answers to the above questions are delivered by the competent courts in case Kahlo’s successors take actions against Mattel. For now, we can only be certain that Frida would spin in her grave if she knew that she has become the new Mexican Barbie.

 

By Len Hernández, Trademark & Design Attorney at GEVERS