Image: Museo del Arte Moderno, Mexico City
This is the time of year when Canadians find a desperate need to escape, from rain, sleet, snow and hail. They head for sunnier climes further south. With my family I spent a few days in that great, populous republic down south, the one with a brand-new president, and where people are intent on chasing the mighty dollar, the US dollar that is. I am, of course, referring to Mexico. And with the withering Loonie, now down below 70 cents US, there were no bargains to be had. But we had sunshine, tacos, tequila and laughter.
Apart from its cuisine and history, Mexico is a cultural powerhouse, particularly in the art world with artists such as Diego Rivera and Frida Kahlo. Rivera, although politically controversial, was famous for decades and did much of his work in the US, where his works were no doubt registered, with many of them (all those produced since 1929) still falling under copyright protection in the US. Kahlo, twenty years his junior and his third wife (he would go on to have four) was not so well known during her lifetime (she died at age 47 in 1954 after a series of debilitating health issues and tempestuous love affairs) but then became immensely popular posthumously, in the 1970s and 1980s, particularly outside Mexico.
Books, coffee mugs, porcelain tiles, prints and all sorts of other items in the boutiques that line every small Mexican town where tourists gather feature Rivera and Kahlo paintings, along with all the other usual bric-a-brac, macrame, shell necklaces, etc. You name it. I confess to not knowing much about Mexican copyright law, but seeing all this artwork made me wonder if it was authorized or infringing. All I knew was that Mexico has one of the longest terms of copyright protection in the world, if not the longest. In Mexico, at the current time, a work is protected for the life of the author plus 100 years. Contrast this to the US, EU, Canada or many other countries where the term of copyright protection is life plus 70 years. In some other countries, it is still the Berne Convention minimum of life plus 50 years. So, with this long period of protection Mexico must have long considered protection for artists and authors a priority, right? Wrong.
In fact, the term of protection in Mexico was quite short until relatively recently, and this affects the term of copyright protection in Mexico for works by both Rivera and Kahlo. According to this article published a few year ago by a Mexican law firm, it wasn’t until 2003 that the Federal Congress extended the term of protection to life plus 100 for economic rights. However, as recently as 1947 the term of protection was only life plus 20 years. In 1956 this was extended to life plus 25 years. This was made retroactive so Kahlo’s works in Mexico were protected until the end of 1979. (1954 plus 25 years). Rivera died in 1957 and his works therefore entered the public domain in Mexico in 1983. There were further amendments in 1963 that extended the term to life plus 50, but with no retroactivity. This allowed Mexico to join the Berne Convention in 1972. In 1997, there was a further amendment to extend the term to life plus 75 and finally the ultimate extension in 2003. There was no retroactive application of the extended terms legislated in 1963, 1997 or 2003 to works already in the public domain, in other words there was no restoration of protection. It is clear that insofar as copyright protection is concerned both Rivera’s and Kahlo’s works have been in the public domain in Mexico for a number of years. What about elsewhere?
Every year in January public domain advocates publicize the major works where copyright protection has just expired as of January 1. Last year Steamboat Willie was the star attraction. This year in various arts publications Kahlo gets top billing along with Henri Matisse and others. While Kahlo’s works have indeed fallen into the public domain as of January 1, 2025 in some countries, (given that 70 years have passed since her death in 1954), this does not necessarily include the United States, despite some online reports to the contrary. It all depends on whether her works were published in the US or registered for US copyright. This is because, for works created before January 1, 1978, the US applies the life plus 70 years rule only to unpublished or unregistered works. US law further extends the term of protection for such works if they were eventually published before December 31, 2002—resulting in a possible maximum term of protection that would last through the end of 2047. See this guidance from the US Copyright Office.
Assuming that Kahlo’s unpublished works were registered for copyright in the US (or if they were published prior to her death), her works for which the copyright protection term started before 1930 would be in the public domain as of this year. (This is because the US applies a copyright protection term of 95 years from date of publication or registration for pre-1978 registered or published works). But any registered unpublished works or published works of hers where the term of protection started after 1929 are still protected. This would be the bulk of her repertoire as she started producing works around 1925 but most of her work was produced in later years, after 1930. However, if a work was not published or registered, the life plus 70 rule applies (except if the work was subsequently published before December 31, 2002). Those unpublished or unregistered works will have entered the public domain on January 1 of this year in the US. In other words, it all depends on the work. Blanket statements that all of Kahlo’s work is now in the public domain in the US are dangerous and very likely inaccurate.
What about Canada? Here the interpretation is a lot easier. All of Kahlo’s works have been in the public domain in Canada since January 1, 2005 since Canada applied a life plus 50 year term at the time her works reached copyright maturity.
How about Rivera? Given that much of his work was done in the US, it is likely his works were both registered and published, and so his post 1929 works will still be protected for many years, depending on the year the work acquired copyright protection. And in countries that apply a life plus 70 term his works will be protected until January 1, 2028, given the date of Rivera’s passing, 1957. But in Canada, his works became publicly available in 2008. In Mexico, as noted above, his work entered the public domain in 1983 (date of death 1957 plus 25 years under the 1956 amendment).
That’s all very clear, right? Well not really, and its further complicated by the fact that a Mexican corporation, the Frida Kahlo Corporation has registered trademarks of Kahlo’s likeness in the US as well as Frida Kahlo wordmarks associated with products such as cosmetics, alcoholic beverages, cigars, games, coffee, clothing, dishware, etc. and has been aggressive in issuing takedown notices and even bringing lawsuits against various artists and enterprises that have used Kahlo’s personality to market items, such as Kahlo dolls. It also defends the copyright on those Kahlo works that still are protected in the US.
As is often the case with copyright, the principle (protection of the author’s economic rights) is simple, but the application is frustratingly complex. It would appear that works by Rivera and Kahlo have been in the public domain in Mexico for decades, for a couple of decades in Canada, and that Kahlo’s works are now in the public domain in the EU and UK. But not Rivera’s. In the US some of their works, if registered and produced post-1929, are still protected. Unpublished or unregistered Kahlo works are not. Did I say copyright was simple? Pass the tequila.
© Hugh Stephens, 2025. All Rights Reserved.
I would like to acknowledge the help and patience of Rachel Kim, of the Copyright Alliance, for her assistance in helping me understand the intricacies of US copyright law as it applies to the term of copyright protection for works in the US.