Case 2:20-cv-02494-SHL-tmp Document 287 Filed 02/02/23 Page 1 of 12 PageID 2327
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`No. 2:20-cv-2494-SHL-tmp
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`) ) ) ) ) ) ) ) ) ) ) )
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`NANCY CHEAIRS,
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`Plaintiff,
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`v.
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`MARK THOMAS, LISA THOMAS FOX,
`as Executor of the Estate of Helen Thomas,
`as Successor Trustee of Helen T. Thomas
`Living Revocable Trust, and as Successor
`Trustee of the John E. Thomas Residuary
`Trust, and JOHN DOE,
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`Defendants.
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`ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION
`FOR PARTIAL SUMMARY JUDGMENT
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`It has often been said that imitation is the sincerest form of flattery. However, in this
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`case, Memphis-based artist Nancy Cheairs was none too flattered by the alleged unauthorized
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`copying of her original artwork.
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`Before the Court is Plaintiff Nancy Cheairs’ Motion for Partial Summary Judgment as to
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`Liability of Mark Thomas. (“the Motion”) (ECF No. 262.) Plaintiff seeks partial summary
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`judgment against Defendant Mark Thomas1 for her claims under the Copyright Act (17 U.S.C. §
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`106), Visual Artists Rights Act (17 U.S.C. § 106A) (“VARA”), and the Tennessee Consumer
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`Protection Act (Tenn. Code Ann. § 47-18-104) (“TCPA”). In support, Plaintiff argues that there
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`are no genuine issues of material fact as to Thomas’ violations of these laws and that she is
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`1 The Motion is only as to Defendant Mark Thomas. The Court refers to him in this Order as
`“Defendant” or “Thomas”.
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`entitled to judgment as a matter of law. (ECF No. 262 at PageID 1734.) Defendant did not
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`respond to the Motion.
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`For the reasons explained below, Plaintiff’s Motion is GRANTED IN PART and
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`DENIED IN PART. Because there are no genuine issues as to any fact material to Defendant’s
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`liability under the Copyright Act and VARA, Plaintiff’s Motion is GRANTED with respect to
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`those claims. However, Plaintiff’s Motion is DENIED with respect to her TCPA claim as it is
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`preempted by the Copyright Act.
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`FACTUAL BACKGROUND
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`The following facts are taken from Cheairs’ Statement of Material Facts in support of this
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`Motion. (ECF No. 262-1). The Court only discusses the facts that are pertinent to the Motion.
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`As Thomas did not respond to the Motion, none of the following facts are disputed.
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` Cheairs initially filed suit against only Thomas and an unknown “John Doe,” alleging
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`that Thomas sold a number of forgeries of her works in cooperation with John Doe, who assisted
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`him in locating original, authentic works by Cheairs that were then used to create forgeries.
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`(ECF No. 1 at PageID 4.) Cheairs alleges that between 2019 and 2020, Thomas took a number
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`of oil paintings to Memphis Professional Imagining (“MPI”) to have them scanned, digitized,
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`and printed onto canvas. (ECF No. 262-1 at PageID 1735-36.) Thomas represented to Cliff
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`Satterfield, the owner of MPI, that he had the right to make copies of the paintings and that
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`making copies would not be copyright infringement. (Id. at PageID 1735.) Mr. Satterfield
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`testified that each of these oil paintings had the name “Nancy Cheairs” on it. (Id.) He also
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`testified that he believed Thomas’ representations as to his intellectual property rights and
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`delivered the digital images and copies to him in accordance with his instructions. (Id. at PageID
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`1735-36.) Cheairs testified that she did not in fact give Thomas permission to make copies of
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`her artwork. (Id. at PageID 1737.)
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`During this same time period, Thomas ran multiple advertisements in the local
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`newspaper, the Commercial Appeal, promoting art for sale by several Memphis artists, including
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`Cheairs. (Id. at PageID 1736.) In December 2019, after seeing this ad, Haywood Henderson
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`contacted Thomas about viewing his art collection. (Id.) Mr. Henderson testified that he had
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`initially turned down Thomas’ offer to view the art collection due to high prices, but that Thomas
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`contacted him months later offering a discount. (Id.) In June 2020, Mr. Henderson met with
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`Thomas to view his art collection at 4628 Peppertree Lane, the residence of Thomas’ mother
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`Helen Thomas.2 (Id.) Mr. Henderson paid Thomas $5,000 for four paintings. (Id.) Thomas told
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`Mr. Henderson that these paintings were by Cheairs. (Id.)
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`Shortly after purchasing the paintings from Thomas, Mr. Henderson showed his newly
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`acquired artwork to Cheairs. (Id.) After examining the paintings, Cheairs concluded that each
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`was an unauthorized forgery of her work. (Id. at PageID 1736-37.) On February 10, 2022,
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`during the course of this lawsuit, Cheairs visited Helen Thomas’ home to view Mark Thomas’ art
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`collection. (Id. at PageID 1737.) At the residence, she observed many unauthorized copies of her
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`2 Cheairs later added Helen Thomas as a defendant. (ECF No. 116.) Cheairs alleges that Helen
`Thomas participated in her son’s forgery scheme by providing payment to MPI in exchange for
`proceeds from the sale of the disputed copies, providing other funds to further her son’s scheme,
`and allowing him to store the alleged forgeries and meet potential buyer in her home. (Id. at
`PageID 720-21.) Helen Thomas passed away in January 2022, and the Court granted Cheairs’
`Motion for Substitution of Parties, with Lisa Thomas Fox, the Executor of Helen Thomas’
`Estate, Successor Trustee of the Helen T. Thomas Revocable Living Trust, and Successor
`Trustee of the John E. Thomas Residuary Trust taking her place. (ECF Nos. 169, 177). For a
`full summary of Helen Thomas’ involvement in this matter, see the Court’s Order Granting in
`Part and Denying in Part Defendant Lisa Thomas Fox’s Motion for Summary Judgment. (ECF
`No. 286.)
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`artwork and determined that these copies were derived from fourteen of her original works of art.
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`(Id.)
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`Cheairs testified that the forgeries she viewed with Mr. Henderson and at Helen Thomas’
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`residence were digital images printed with ink in such a way as to make them appear to be
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`original, and featured her signature to further bolster the appearance of authenticity. (Id.) The
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`forgeries used physical materials, such as canvas and wooden mounting materials, that were not
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`of the quality she typically uses in her work. (Id.) These inferior physical materials contributed
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`to a poor appearance and cheap representation of Cheairs’ work. (Id.) Furthermore, some of the
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`forgeries were printed in sizes that differed from the dimensions of the corresponding original
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`work, which made them appear pixelated and distorted. (Id.) Some also had stains or blemishes
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`on the back of the canvas, in an attempt to make the works appear more convincingly hand made
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`as opposed to printed. (Id. at PageID 1738-39.) Many had paint applied to the sides of the
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`canvas to conceal their clean machine-printed edges. (Id. at PageID 1738.) Thomas’ creation of
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`forgeries in a medium that Cheairs did not authorize, using inferior physical materials, creating
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`images with machine-created edges, changing the proportions of the works, and placing her
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`signature on these objects without her permission damaged her reputation and caused financial
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`and emotional damage to her. (Id.)
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`Cheairs also states that the Copyright Office granted her copyright registration in each
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`work that Thomas copied. (Id. at PageID 1745.) Before the filing of her Fifth Amended
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`Complaint, the Copyright Office issued a certificate of copyright registration to Cheairs for each
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`work at issue. (Id.)
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`PROCEDURAL HISTORY
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`Cheairs filed her Fifth Amended Complaint on March 10, 2022. (ECF No. 198.) She
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`seeks a continuation of the temporary restraining order and preliminary injunction the Court
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`granted on July 14, 2020, which restrained Thomas from creating, copying, marketing, offering,
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`showing, or selling any work he claims are works by Cheairs, along with an eventual permanent
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`injunction to that same effect. (Id. at PageID 1242-45.) Cheairs alleges that Thomas’
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`reproduction and sale of her work constitutes violations of the Copyright Act and VARA. (Id. at
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`PageID 1245.) She requests the relief afforded by these statutes, including but not limited to,
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`impoundment, damages, statutory damages, and attorney’s fees and costs. (Id. at PageID 1245-
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`47.) Cheairs also alleges that Thomas’ placement of objects made with inferior physical
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`materials into the stream of commerce under the false pretense that they were created by Cheairs
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`violated the TCPA. (Id. at PageID 1249.) She requests the relief afforded by the TCPA,
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`including damages, treble damages, and attorney’s fees and costs. (Id. at PageID 1252.)
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`Cheairs filed this Motion for Partial Summary Judgment on October 3, 2022. (ECF No.
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`262.) To date, Thomas has not filed a Response. Furthermore, throughout this litigation,
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`Thomas has declined to provide any evidence. He repeatedly invoked his Fifth Amendment
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`privilege against self-incrimination at his deposition. (See ECF No. 262-5 at PageID 1764.)
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`And, on May 2, 2022, he invoked his Fifth Amendment privilege in his Response to Cheairs’
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`Fifth Amended Complaint, (ECF No. 215), Response to Request for Documents, (ECF No. 215-
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`2), and Answer to Interrogatories, (ECF No. 215-3). Although Thomas did not have an attorney
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`at the time of the May 2, 2022 filing, he is now represented by counsel. (See ECF No. 215 at
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`PageID 1390; ECF No. 252.) His counsel has not sought leave to amend his May 2, 2022 filing
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`or sought an extension to respond to this Motion.
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`ANALYSIS
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`While Cheairs’ Motion is unopposed, the evidence submitted by her in support of her
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`Motion must be carefully reviewed to determine whether a genuine dispute of material fact
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`exists. Here, the record establishes that there is no genuine issue as to any fact material to
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`Thomas’ liability under the Copyright Act and VARA. Therefore, Cheairs is entitled to
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`summary judgment as to these claims. However, as a matter of law, Cheairs is not entitled to
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`summary judgment as to her TCPA claim because the rights asserted in this state law claim are
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`legally equivalent to the exclusive rights provided by the Copyright Act. Her TCPA claim is
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`therefore preempted.
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`I.
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`Summary Judgment Standard
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`Summary judgment is proper “if the movant shows that there is no genuine dispute as to
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`any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
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`56(a). The court must view the facts in the record and reasonable inferences that can be drawn
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`from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.
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`v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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`Once a properly supported motion for summary judgment has been filed, the party
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`opposing summary judgment must show that there is a genuine dispute of material fact by
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`pointing to evidence in the record or argue that the moving party is not entitled to judgment as a
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`matter of law. Fed. R. Civ. P. 56(a), (c)(1). The opposing party “cannot rest solely on the
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`allegations made in [his] pleadings.” Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009)
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`(quoting Skousen v. Brighton High Sch., 305 F.3d 520, 527 (6th Cir. 2002)).
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`A genuine issue for trial exists if the evidence would permit a reasonable jury to return a
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`verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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`The court’s role is not to weigh evidence or assess the credibility of witnesses, but simply to
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`determine “whether the evidence presents a sufficient disagreement to require submission to a
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`jury or whether it is so one-sided that one party must prevail as a matter of law.” Kroll v. White
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`Lake Ambulance Auth., 763 F.3d 619, 623 (6th Cir. 2014) (quoting Anderson, 477 U.S. at 251–
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`52). If the moving party meets its initial burden and the nonmoving party fails to respond, “its
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`opportunity is waived, and its case wagered.” Guarino v. Brookfield Twp. Trustees, 980 F.2d
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`399, 405 (6th Cir. 1992).
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`Cheairs argues that she is entitled to summary judgment on each of her claims because of
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`Thomas’ failure to respond. (ECF No. 262-2 at PageID 1743.) She argues that because he failed
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`to provide any evidence in these proceedings, no factual disputes exist. (Id.) To be sure,
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`Thomas must bear the consequence of his lack of evidence. In some cases, if a party claims the
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`Fifth Amendment privilege and does not present his own evidence there will be nothing to
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`support his view of the case and a grant of summary judgment will be proper. Baxter v.
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`Palmigiano, 425 US 308, 318-19 (1976). Nonetheless, a court may not use a party’s failure to
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`respond as a reason for granting summary judgment without first examining all the materials
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`properly before it. Fed. Trade Comm’n v. E.M.A. Nationwide, Inc., 767 F.3d 611, 630 (6th Cir.
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`2014). This is because “[a] party is never required to respond to a motion for summary judgment
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`in order to prevail since the burden of establishing the nonexistence of a material factual dispute
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`always rests with the movant.” Id. (quoting Smith v. Hudson, 600 F.2d 60, 64 (6th Cir. 1979)).
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`Therefore, even where a motion for summary judgment is unopposed, a court must carefully
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`review the portions of the record submitted by the moving party to determine whether a genuine
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`dispute of material fact exists and whether the movant is entitled to judgment as a matter of law.
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`Id. The Court undertakes this careful review of the record below.
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`II. Copyright Infringement
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`Cheairs argues that there is no genuine issue as to any fact material to Thomas’ liability
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`for copyright infringement under the Copyright Act. (ECF No. 262-2 at PageID 1744.) To
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`establish a copyright infringement claim, a plaintiff must show: (1) ownership of a valid
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`copyright, and (2) copying of the constituent elements of the work that are original. Feist
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`Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 US 340, 361 (1991). As to the first element,
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`registration of a valid copyright is prima facie evidence of ownership and that the work is
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`entitled to protection. ECIMOS, LLC v. Carrier Corp., 971 F. 3d 616, 628 (6th Cir. 2020). For
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`the second element, the defendant’s copying must relate to elements of the work that are
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`protected by copyright. Feist, 499 US at 361. A plaintiff may demonstrate copying through
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`direct or indirect evidence. Enchant Christmas Light Maze & Market Ltd. v. Glowco, LLC, 958
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`F.3d 532, 536 (6th Cir. 2020).
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`Here, the record establishes that Cheairs created and owned the copyright in the original
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`paintings that Thomas used to make his forgeries. The Copyright Office issued a certificate of
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`copyright registration to Cheairs for each work at issue, providing prima facie evidence of
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`ownership of a valid copyright. Furthermore, Cheairs testified that the paintings she inspected
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`from Mr. Henderson and at Helen Thomas’ house were unauthorized copies of her original work.
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`There is no evidence in the record to the contrary.
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`Cheairs has also established the second element of copying. Mr. Satterfield, the owner of
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`MPI, provided direct evidence of copying. He testified that, per Thomas’ instructions, MPI
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`scanned, digitized, and printed copies of oil paintings that bore Cheairs’ name. Additionally, Mr.
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`Henderson testified that he purchased four works from Thomas, and that Thomas represented
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`that these works were original paintings created by Cheairs. This evidence establishes that
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`Thomas copied Cheairs’ original artwork, and, as noted, Thomas did not respond to this Motion
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`and has not disputed any of these facts.
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`Because there is no factual dispute as to whether Cheairs owned a valid copyright in the
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`works at issue or that Thomas copied her works to create his forgeries, Cheairs’ Motion is
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`GRANTED as to her Copyright Act claim. She is entitled to summary judgment as to Thomas’
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`liability for copyright infringement under the Copyright Act.
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`III. VARA
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`Cheairs also argues that there is no genuine issue as to any fact material to Thomas’
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`liability under VARA. (ECF No. 262-2 at PageID 1746.) VARA grants the author of a work of
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`visual art the right “to prevent the use of his or her name as the author of any work of visual art
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`which he or she did not create.” 17 USC § 106A(1)(B).
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`The facts in the record establish that Thomas also violated VARA. He copied Cheairs’
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`original works of visual art and put her name on each copy as if she had created it. Mr.
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`Henderson testified that Thomas represented that each painting he sold him was an original work
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`of art by Cheairs. Cheairs inspected the artwork Mr. Henderson purchased from Thomas, as well
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`as artwork that Thomas stored at his mother’s home, and testified that these pieces of art were
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`forgeries of her original work. She further testified that she did not authorize Thomas to put her
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`name on any work. Therefore, Cheairs has met her burden to establish Thomas’ liability under
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`VARA. Because Thomas does not dispute any of these facts, there is no genuine dispute of any
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`fact material as to his liability under VARA. Therefore, Cheairs is entitled to summary judgment
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`and her Motion is GRANTED as to her VARA claim.
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`IV. TCPA
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`Finally, Cheairs argues that there is no genuine issue as to any fact material to Thomas’
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`liability under the TCPA. (ECF No. 262-2 at PageID 1747.) The TCPA prohibits causing the
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`likelihood of confusion or misunderstanding as to the source, sponsorship or approval of services
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`being provided, or their affiliation, connection, or association with another. Tenn. Code Ann. §
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`47-18-104(b)(2)(3). The TCPA also prohibits representing that goods are of a particular
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`standard, quality, or grade, when they are of another. Tenn. Code Ann. § 47-18-104(b)(7).
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`According to Cheairs, the record shows that Thomas violated the TCPA and damaged her
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`reputation by putting objects in the stream of commerce that he said she created but that were not
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`her work and that were created and mounted with cheap materials that she does not use. (ECF
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`No. 262-2 at PageID 1748.) Cheairs further argues that Thomas violated the TCPA by falsely
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`representing that she created the artwork he showed to potential buyers. (Id. at PageID 1748-49.)
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`Because Thomas does not dispute any of these facts, Cheairs argues that she is entitled to
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`summary judgment as to his liability under the TCPA. (Id. at PageID1749.)
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`While there is no genuine issue of fact as to Thomas’ liability under the TCPA, Cheairs is
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`not, as a matter of law, entitled to summary judgment because her state-law TCPA claim is
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`preempted by her Copyright Act claim. The Copyright Act expressly “preempts state law
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`claims, and federal law vests exclusive jurisdiction over such preempted copyright claims in
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`federal courts.” Ritchie v. Williams, 395 F.3d 283, 285 (6th Cir. 2005). Section 301 of the
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`Copyright Act subjects any state law to federal preemption if: (1) the law creates “legal or
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`equitable rights that are equivalent to any of the exclusive rights within the general scope of
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`copyright as specified by Section 106”; and (2) the rights under such state law may be claimed in
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`“works of authorship that are fixed in a tangible medium of expression and come within the
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`subject matter of copyright as specified by Sections 102 and 103.”
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`In her Fifth Amended Complaint, Cheairs also asserts claims against co-defendant Lisa
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`Thomas Fox under the TCPA and Copyright Act. (ECF No. 198 at PageID 1247-48, 1249,
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`1251.) Fox, in her Motion for Summary Judgment, argued that Cheairs’ state law TCPA claim
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`should be dismissed as preempted by the Copyright Act.3 (ECF No. 260-1 at PageID 1719-20.)
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`She argued that the two requirements for preemption, “equivalency” and “subject matter”, were
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`met in this case. According to Fox, “equivalency” is established because Cheairs’ TCPA claim
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`seeks to vindicate legal and equitable rights that are equivalent to one or more of the bundle of
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`exclusive rights protected by the Copyright Act. (Id.) Moreover, Fox argued that Cheairs’
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`TCPA claim arose out of the copying and distribution of her work—conduct that falls squarely
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`within the exclusive rights protected by Section 106 of the Copyright Act, thus fulfilling the
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`“subject matter” requirement. (ECF No. 278 at PageID 2239.)
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`In her Response to Fox’s Motion, Cheairs argued that her TCPA claim against Fox was
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`not preempted by the Copyright Act. (ECF No. 277 at PageID 2205-06.) In support, Cheairs
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`argued that her TCPA claim arose from Thomas’ use of inferior physical materials in the use of
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`his forgeries. (Id. at PageID 2206.) She alleged that Thomas’ forgery scheme deceived
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`consumers into thinking that they were buying original works by Cheairs when in fact the goods
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`they were being sold were made of inferior materials and were not the artist’s work. (Id. at
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`PageID 2210.) She further argued that Thomas’ use of inferior physical materials damaged her
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`3 In addition to Cheairs’ TCPA claim, Fox argued that Cheairs’ state law claims for common law
`conspiracy, tortious interference with prospective business relationships, unjust enrichment, and
`libel were preempted by the Copyright Act. (ECF No. 260-1 at PageID 1719-20.) The Court
`agreed and dismissed these state law claims. (ECF No. 286.)
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`reputation as an artist and damaged the integrity of her body of work. (Id. at PageID 2209.)
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`According to Cheairs, this deception of potential buyers went beyond the mere act of copying
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`and was not preempted by the Copyright Act. (Id. at PageID 2210).
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`Here, Cheairs offers the same argument on her TCPA claim, supported by the same facts,
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`as offered in Response to Fox’s Motion for Summary Judgment. For the reasons explained in
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`the Court’s Order Granting in Part and Denying in Part Lisa Fox’s Motion for Summary
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`Judgment, (ECF No. 286), the Court finds that Cheairs’ TCPA claim is equivalent to the
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`exclusive rights within the general scope of copyright as specified by Section 106 of the
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`Copyright Act.4 Accordingly, Cheairs’ TCPA claim against Thomas is preempted by the
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`Copyright Act and is therefore DISMISSED.
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`CONCLUSION
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`For the reasons stated above, the Court GRANTS Plaintiff’s Motion for Partial Summary
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`Judgment as to Defendant Mark Thomas’ liability under the Copyright Act and VARA.
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`However, the Court DENIES Plaintiff’s Motion for Summary Judgment as to her TCPA claim
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`and DISMISSES that claim as preempted.
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`IT IS SO ORDERED, this 2nd day of February, 2023.
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`s/ Sheryl H. Lipman
`SHERYL H. LIPMAN
`CHIEF UNITED STATES DISTRICT JUDGE
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`4 As the Court previously ruled on the preemption of Cheairs’ TCPA claim under the Copyright
`Act, the Court need not conduct a separate preemption analysis in this Order. For a more
`detailed preemption analysis and review of relevant caselaw, see the Court’s Order Granting in
`Part and Denying in Part Lisa Fox’s Motion for Summary Judgment. (ECF No. 286.)
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