Blog / 2019 / Free Frida: The Case of Nina Shope and Frida Kahlo Corporation

November 14, 2019

If you love someone, set them free. This is true of people you care about but also of your art, as illustrated by the case of Nina Shope and Frida Kahlo Corporation.

What happened:

Frida Kahlo’s copyright on her work expired in 2004, fifty years after the artist died. This freed Kahlo’s imagery fully for all uses: everything from the direct reproduction of it to the more inspired reimagining of her oeuvre that contemporary artists like to do.

But, unbenownst to all of us creative-types who were thrilled that the Mexican surrealist’s art was now in the public domain, a new kind of ownership claim was already developing. In 2003, the artist’s great-niece, Isolda Pinedo Kahlo, began the process of registering trademarks on her aunt’s name as well as on her entire body of work.

Trademarks differ from copyright in a variety of ways that I don’t entirely understand, but what’s especially important for this story is that, unlike copyright, trademark does not expire after a set term. Trademark rights can be registered officially, but they are based in use. That means that in order to claim trademark rights, you must use trademarked material in commerce as a way of indicating the source of goods and services—as in labeling or branding of some kind. In other words, a trademark can last forever so long as you keep selling stuff that maintains the trademark’s claim and you keep stopping others from doing so.

Isolda’s first trademark seems to target much of what artists might create, including fiction and nonfiction books as well as prints—though I have trouble seeing how it could prohibit original artworks made in Frida’s style by a different artist. The subsequent trademarks cover everything from games and dolls to alcoholic beverages and cigar cutters.

By 2008, all these trademarks had a new owner, Frida Kahlo Corporation. This company does a very good job of pretending that it is the only entity that should decide how her imagery should be used. It seems to take every opportunity to shut down artists’ creativity if there’s even a hint of Frida to it.

one of Nina Shope’s Frida-inspired dolls
one of Nina Shope’s dolls, photo by Daniel James

Case in point: earlier this year Frida Kahlo Corporation sent Etsy a takedown notice claiming that some of Denver artist Nina Shope’s handmade dolls, like the one pictured here, violated the company’s trademark. Etsy complied with the notice, removing the dolls from Shope’s shop, but the artist decided to fight back. Shope is suing Frida Kahlo Corporation in federal court.

Why it matters:

On a superficial level, if you are making Frida-inspired art, then this is obviously of interest, but there are deeper issues at stake too.

If an artist’s creativity never truly goes into the public domain—which is what is happening with Frida’s art—then we all suffer. Our cultural heritage gets stuck in “commodification mode” where someone is making bank on the creativity. It never progresses to “creative soup mode“ where we’re all being nourished and fueled by the creativity that came before us to help humanity imagine a new future.

Beyond all that, there’s the question of what an artist can do to protect the spirit of their art after they die. The grabbiness of Isolda Pinedo Kahlo and Frida Kahlo Corporation leaves me wondering:

  • Is it right for anyone but the artist to decide how to monetize their art?
  • How do we determine who is qualified to care for an artist’s legacy?

These considerations are just some of the reasons why I place all my art in the public domain. By being loud about not trying to control my imagery and by being proud of artists who copy me, I am hoping to guard against some future corporation declaring itself the authority on all things Gwenn Seemel.

We may not be able to go back in time to get Frida on the free culture bandwagon, but we can celebrate today’s heroes: Nina Shope for standing up to the corporation and her lawyer Rachael Lamkin for championing her cause.

It’s important to mention the lawyer here, because Lamkin’s mission statement makes the uncopyrighting advocate in me weep for joy. Among other things, the existence of a lawyer like Lamkin gives me hope that we can one day #FixRedbubble and put an end to the scourge of spurious takedowns!

PLEASE NOTE

I have no patience for institutions or individuals that misrepresent or misuse copyright. I’ve called out everyone from David Hockney and Austin Kleon to TED company and Fonthill Castle.

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