Can Mattel be prevented from making its own Frida Kahlo Barbie doll?

Frida Kahlo

Mexican artist Frida Kahlo de Rivera has left an incredible legacy, and this is arguably true with regard to both her art and personal life and image.

It is therefore no surprise that quite a lot of initiatives, including films, restaurants, merchandising, games and even emjois, have been dedicated to this artist.

Also Mattel has recently decided to honour Kahlo by dedicating her one of its signature Barbie dolls as part of its Barbie Inspiring Women Series, unveiled on International Women's Day 2018. The Frida Kahlo Barbie has been chosen on account that 

"Frida Kahlo continues to be a symbol of strength, originality, and unwavering passion. Overcoming a number of obstacles to follow her dream of becoming a fine artist, Frida persevered and gained recognition for her unique style and perspective. With her vibrant palette and mix of realism and fantasy, she addressed important topics like identity, class, and race, making her voice-and the voices of girls and women alike-heard. Her extraordinary life and art continue to influence and inspire others to follow their dreams and paint their own realities."

In producing its Frida Kahlo Barbie, Mattel apparently worked "in close partnership with the Frida Kahlo Corporation, the [seeming] owner of all rights related to the name and identity of Frida Kahlo," and that the corporation was "an important part of the doll development process".

Despite this, not everyone is happy with the appearance of the Frida Kahlo Barbie. 

In particular, a descendant of the artist, Mara Romeo, has suggested that the doll's appearance - which does not really have Kalho's well-known unibrow [according to certain commentators, the doll would not even look like Kahlo] - does not really represent Kahlo: “I would have liked the doll to have traits more like Frida’s, not this doll with light-colored eyes,” Romeo said. “It should be a doll that represents everything my aunt represented, her strength.” 

According to Romeo, Mattel did not have the right to use Frida Kahlo's image and has now threatened legal action against the famous toy producer.

Mattel's own
Frida Kahlo

But would she have a legitimate ground to do so, even assuming that the Frida Kahlo Corporation did not have rights over Kahlo's image?

To answer this question, it is necessary to consider whether any image/publicity rights would be available in a case like this and, if there are any, what their scope and duration are.

Mexican image/publicity rights

To this end, I tried to see what the Mexican approach to image/publicity rights is, and found out that Mexico indeed grants specific protection in this sense.

Apart from an implied constitutional basis, rooted within the fundamental right to privacy within Article 16 of the Mexican Federal Constitution, Mexico has a specific legislation in place recognising indeed the protection of image rights. Adopted in 2006, the Law on Civil Liability for the Protection of Private Life, Honour and Self-Image is the current statute in force in Mexico which provides a civil framework for the protection of one's own image.

In particular, Articles 17 and 18 provide that everyone is entitled to the protection of one's own image, which encompasses any use thereof - including commercial uses. 

Self-portrait with
the IPKat

When reading this act, I was under the impression that no express limits are set to the duration of these rights, which appear to be personal rights of the person. Hence, it is not clear to me whether they can be enforced post mortem, eg by the successors in title of the person whose image is being used. In Italy, for instance, both the Civil Code (Article 10) and courts acknowledge that right over one's own image can be enforced also by the person's close relatives (parents, spouse, children), in any case in which one's own image is being used or published outside where otherwise allowed by the law, or when the use causes prejudice to the honour or reputation of the person or his/her relatives. 

Mexican copyright law

Having said so, however, the Mexican Copyright Act provides some guidance in a case like that one at issue. In fact, the Article 87 provides that the rights of the person portrayed in a photographic, plastic or graphic work expires 50 years after his/her death [trivia: it may be recalled that Mexico is the country with the longest copyright term in the world: life of the author + 100 years after his/her death: see Article 29].

Since Frida Kahlo died in 1954, it would appear that there might not longer be a right to oppose the use of her image as such, possibly with the exclusion (but, again, I am not sure whether there would be a legal basis in this sense) of cases in which the use causes prejudice to her honour or reputation. This seems to me not to be the case of the Mattel doll which is meant as a celebration of Kahlo.

What do readers think? Any insights from Mexican readers would be greatly appreciated!

[Originally published on The IPKat on 10 March 2018]