Jody Edwards couldn't believe her eyes when she walked into her local Winners and saw a rack full of shirts with her artwork on them.
She later discovered that even though the tops were being sold at big department stores across the country, she likely won't see a cent from those sales.
"Right in that front display were a bunch of shirts with feathers on them," says Edwards, a St. Catharines, Ont., artist who is known for her watercolour paintings.
"As I got closer, my stomach dropped and I thought, that's mine, that's mine and that's mine. Some of those feathers on the shirt belong to me."
The same tops were also sold at Marshalls stores across Canada and on the Nordstrom Rack website.
Edwards believes the company that made the shirts and supplied them to the retailers, found her artwork online and used the feather images without her permission. Under Canadian copyright law, the paintings she creates automatically belong to her.
"You feel violated — that's my work. My son, who's seven, says we should call the police. How do you explain to him you can't call the police? It is theft, but copyright infringement is totally different, but just as unfair. Now I have to fight for my own work. It's crazy," Edwards says.
Artist says she got the brush off
When Edwards contacted Nordstrom and TJX Canada, the company that owns Winners and Marshalls, TJX said it would stop selling the shirts.
Nordstrom Rack told her the tops were sold out and no longer available on its website.
Both companies told her if she wanted to get paid for the use of her work, the payment would have to come from the supplier, Los Angeles-based Vanilla Sugar.
"It looks bad on them to be selling merchandise with stolen images. They are just acting like it's not their problem…. You feel helpless. These are big box companies," Edwards said.
Copyright the supplier's issue: retailers
TJX and Nordstrom offered similar responses to our questions when Go Public asked if Edwards should be entitled to a share of the profits.
"We take issues related to intellectual property very seriously…. This is not a product that Nordstrom produced. We expect each of our vendors to comply with all relevant laws and regulations," wrote Emily Sterken, Nordstrom spokeswoman.
'You feel violated ... now I have to fight for my own work. It's crazy.' - Jody Edwards, artist
TJX Canada wrote: "We take this matter seriously.... The intellectual property rights of others are important to us.
"Not only do our merchandise vendors represent and warrant that the goods they supply to us are in compliance with all applicable laws, but they also represent and warrant that the goods do not infringe anyone's copyright or trademark rights."
TJX said it would put pressure on the supplier to deal with her concerns.
Tracking supplier tricky business
Nordstrom and TJX provided Edwards with contact information for the company that made and manufactured the shirts but Go Public found tracking the supplier down was complicated.
First, the phone numbers were out of service. Vanilla Sugar is one of eight different names used by one company, which also lists 13 different street addresses.
When Go Public finally tracked down the supplier, phone calls and emails went unanswered.
Instead, Edwards was contacted by the supplier's legal representatives. The Los Angeles law firm of Lee, Han and Paciocco emailed her citing concerns about what she was telling Go Public.
Lawyer talks settlement
In that email, the law firm also said the supplier — with yet another business name — denies the feather art used on the shirts was from Edwards's artwork.
"Bella-M [Inc.] designed the subject feather design pattern by referencing images in Shutterstock website," it read.
According to the email, the supplier is willing "to amicably resolve" the issue and said it will stop making and distributing the shirts.
The email also said the supplier is willing to negotiate a settlement with Edwards.
The artist said TJX also put pressure on the company to deal with the issue.
Stores not responsible — in Canada
According to Teresa Scassa, a law professor at the University of Ottawa and a specialist in intellectual property law, under Canadian copyright law, Winners, Marshalls and Nordstrom Rack don't have to share any part of their sales with Edwards.
"To be liable for secondary infringement in Canada, it has to be done knowingly. Once the store receives notice that the designs are infringing and pulls the garments from the shelves, then I don't see how they can be liable for secondary infringement," she said.
It's different in the U.S. according to David Schnider, a copyright lawyer in Los Angeles. He says this kind of situation is common in the world of so-called fast fashion where clothing is quickly and cheaply designed and manufactured.
"It's fairly common for artists' works to be used in various formats in the fashion industry. Often times in fabric prints or in other contexts, without their knowledge or permission," Schnider says.
In the U.S., everybody in the chain of distribution can be held responsible if the case goes to court. He says a growing number of retailers are facing copyright infringement claims.
"They would normally be named parties in any lawsuit and would still be liable. What it means is that those stores can recover from the supplier who gave them the goods."
Since the alleged copyright infringement happened in the U.S., Schnider says Edwards could file a lawsuit there, but the artist says that's not likely.
Edwards says it would cost her a lot of money in legal fees, and since none of the companies involved will say how many shirts were sold, she has no idea what she would be entitled to.
But she has taken steps to protect herself. All her work posted online is now watermarked and low resolution so it can't be used without her permission.