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Copyright case shows art, retail can be difficult mix

Painter settles copyright claim with TJX’s HomeGoods

Tom Fleming’s “Spirit and Life” (above) sold for more than $3,000.

Tom Fleming

Tom Fleming’s “Spirit and Life” (above) sold for more than $3,000.

Tom Fleming received the kind of e-mails that most artists dream of: They were from people who purchased his work and wanted more. But there was a problem — Fleming’s fans had bought the pieces at California HomeGoods stores and he had no idea the chain was selling his paintings.

Fleming, who lives in North Carolina, made calls to the West Coast stores and confirmed what the messages claimed — unauthorized 6-foot-tall reproductions of “Depths of Love” and “Spirit & Life” were being offered for $99. In fact, both pieces were so popular that they had quickly sold out at the home furnishing retailer, which is owned by Framingham-based TJX Cos.

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Almost two years later — following a legal battle that pitted a small-town artist against a major retail outlet and art supplier — a federal judge in California ruled in favor of Fleming and the artist recently settled a copyright infringement case for more than $10,000.

TJX declined to comment on the settlement.

Janet Guy of ATI Industries, the art supplier, said the case was settled and then dismissed, but would not explain how Fleming’s work ended up for sale without his permission. “The whole thing arose out of a big misunderstanding over some facts and circumstances concerning the plaintiff, his licensing agent and the defendants,” Guy wrote in an e-mail.

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While the sum of money involved is not huge, the dispute is an example of the complications involved in taking an artist’s work from the studio to a mass retail market.

Much of Fleming’s art is fantasy-based, featuring exotic characters such as the mermaid that dominates “Depths of Love.” His website includes categories like “Fantasy/Sci-Fi” and”Sexy Fantasy/Pin-Up.”

Fleming said he considered a licensing contract with ATI Industries in the fall of 2010, but the talks fell apart in October of that year after the California art supplier could not answer basic questions about pricing, where it planned to sell his artwork, and the quantity involved.

What he didn’t know at the time was ATI had already sent invoices to HomeGoods for 120 copies of “Depths of Love” and “Spirit & Life,” according to court records.

The unauthorized reproductions were more than double the size of his paintings and were selling at a fraction of the price. The originals — a mix of watercolor, color pencil, and acrylics — sold for more than $3,000 apiece.

“ATI was more interested in signing a deal with HomeGoods so they completely disregarded my intellectual property,” Fleming said. “I felt helpless because I didn’t think I had the kind of money to go against a corporation. In general, artists cannot afford to do anything even if they catch people using their images.”

But Fleming found a lawyer who was willing to get paid based on a percentage of any judgment. He filed a lawsuit in US District Court in Central California and after a two-day trial earlier this year, a judge recently ruled in Fleming’s favor.

Fleming said he was not able to sue for punitive damages — which could have brought him far more money — because he had not applied for his copyright registration with the US Library of Congress when he filed the suit. He used the modest settlement to cover his legal costs and to help launch a design firm, Chakra Art & Design.

“When you go to art school, you’re not taught business. You’re taught how to draw and paint and sent out in the world,” he said. “The biggest learning lesson is that talent is not the number one ingredient. My impression was — and a lot of other aritsts, too — that when you sign your paintings, you have protection. But when it comes to the legal system, there are major limitations. I’ve learned now.”

Jenn Abelson can be reached at abelson@globe.com. Follow her on Twitter @jennabelson.
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