June 04, 2002

	Artist Tito Gomez says his work was used without permission or compensation.

an Diego cigar executive Tony Borhani first saw Cuban artist Tito Gomez's colorful abstract paintings in a public square in Havana in 1996. He was so struck that he went back in 1998 and bought three of his canvases.

That wasn't all. Borhani, who owns San Diego-based Bahia Cigars, dubbed Gomez the "Cuban Picasso" in a 1999 interview in Cigar Aficionado magazine. He decided to feature Gomez's paintings in advertisements for his cigars, on his cigar wrappers, on his company's Internet site and on his company's accessories, including porcelain jars and coffee mugs.

The two men became friends. Borhani named a line of cigars after Gomez, calling them Tito. In 1998, Borhani even named his son Tito, after the Cuban artist.

But there may have been one little problem. Borhani failed to get copyright permission from the painter to reproduce his work, according to a federal copyright infringement lawsuit Gomez filed in U.S. District Court in March. Gomez, now 59, filed the action after immigrating with his wife to South Florida from Cuba in February 2001. He currently lives in Sunny Isles Beach.

The suit pits a struggling artist, who for years eked out a living selling paintings to tourists on the streets of Havana, against a high-profile, privately held company that reportedly sells 5 million cigars a year and has been featured in Cigar Aficionado and Smoke magazine. Borhani recently announced plans to move his company from San Diego to Miami.

According to Gomez's attorneys, the artist, who became aware of the use of his work in the Bahia ads as early June 1998, was unable to take legal action until he arrived in South Florida.

"He had no recourse while living in Cuba," says Vivian de las Cuevas, a partner at Ferrell Schultz Carter Zumpano & Fertel in Miami who, along with name partner Alan K. Fertel, is jointly representing Gomez with Lott & Friedland in Coral Gables. She contends that Gomez was unaware when he sold his original paintings to Borhani that they would be used in Bahia products or ads, and that he never signed over the copyright to Bahia Cigars.

But Borhani denies that he did anything wrong. He claims that Gomez not only knew the paintings would be used for his company's commercial purposes, but that Gomez painted the works specifically for Borhani's use in advertisements.

In court papers filed Wednesday, the cigar entrepreneur contends that he never used Gomez's paintings without permission, and that he specifically commissioned the work by Gomez for use in advertisements. "Tony Borhani provided Gomez with original ideas and parameters for the creation of artwork," according to his court filings. "Relying upon Borhani's original concept and ideas, Gomez painted works of art specifically for Borhani's use."

David Friedland, a partner at Lott & Friedland, says damages in the case could reach into the hundreds of thousand of dollars.

The case is before U.S. District Judge Patricia A. Seitz in Miami. Over the objections of Gomez's attorneys, Borhani is trying to get the lawsuit moved to federal court in San Diego, where his company currently is headquartered. In a motion filed last week, Borhani's attorney argued that the case should be transferred because Borhani, critical witnesses, and all of the relevant documents are in southern California.

But in an article in the winter 2002 issue of Smoke magazine, which is displayed on the Bahia Cigars Web site, Borhani is quoted as saying he plans to move his business to Miami. According to the Florida Department of State, Borhani filed incorporation papers with Florida on Jan. 20, 2002, for a company called Hana Imports. The company's registered address is 4970 SW 72nd Ave. An employee at Bahia Cigars in San Diego confirmed Monday that the company plans to move to Miami but did not know when.

Alan Rosenthal, a partner at Adorno & Yoss in Coconut Grove who is representing Bahia Cigars, contends, however, that the company's plans to move have "been shelved because of costs and logistics."

Commissioned paintings?

According to Gomez's lawsuit, Borhani visited Cuba and purchased three paintings from the artist in 1998: "Mujeres," "Seres Humanos No. 1," and "Seres Humanos No. 2." On later visits, Borhani bought even more paintings, collecting as many as 46 works. Borhani returned to the U.S. and allegedly used the art unlawfully for ads in publications including Ocean Drive magazine and Cigar Aficionado.

In June 1998, during a visit to Havana, Borhani told Gomez that one of Gomez's paintings was featured in a Bahia ad in Cigar Aficionado magazine, according to the complaint.

Gomez was shocked when he learned about the ads, de las Cuevas says. But because he wasn't familiar with U.S. copyright law and faced political obstacles to taking any legal action, de las Cuevas says, Gomez continued his friendly relationship with Borhani rather than confront him. "Tito didn't want the relationship to be hostile," de las Cuevas says.

But Rosenthal, who is representing Bahia Cigars, says Gomez knew the paintings would be used for the cigar company's commercial purposes. "Borhani commissioned the artwork from Tito Gomez for Bahia advertisements," Rosenthal contends.

Friedland counters that even if Borhani did commission the paintings, that doesn't address the issue of commercial use. "Even if it were commissioned, he only owns the painting, not the copyright," Friedland says. "You can't reproduce without a copyright and you only own a copyright by assignment or agreement."

To date, no contracts have been produced in the court file that show a transfer of copyright.

'Joke of the day'

In February 2001, Gomez immigrated to South Florida with his wife, leaving their two children behind. Borhani came to Miami to visit Gomez in August 2001, according to de las Cuevas. At the meeting, Gomez says, Borhani promised to open a gallery for the artist in South Beach, pay him a monthly salary of $1,500, and subsidize an apartment for him. Gomez alleges that Borhani never followed through.

Relations quickly deteriorated between the two men. After learning in November that Gomez had retained legal counsel with the intention of filing a copyright infringement suit, Borhani heaped ridicule on Gomez, according to court papers. He allegedly called the artist's lawyer and left a voice mail message in which he claimed that Gomez's allegation was "the joke of the day."

"If anybody knows Mr. Gomez's work, [it] is because of the work I have done," Borhani said in the message. Expressing surprise at the prospect of being sued by Gomez, Borhani added, this "must be an American side of Cubans when they get to this country."

But Rosenthal insists that the lawsuit has made Borhani "extremely disappointed. Borhani has always had a close relationship with Tito Gomez and considers him to be a brother."

Gomez continues to paint in his small apartment, which he and his wife share with a roommate, and cherishes hopes of breaking into the Miami art scene, de las Cuevas says. He's been featured in two small art shows in Paris and New York City, but currently is struggling financially, she says. He and his wife are trying to get government permission to bring their two children over from Cuba.

Needless to say, the patron and his Cuban Picasso no longer speak to each other. "In October, Borhani called Tito but that's been it, they have not talked since," de las Cuevas says.



Matthew Haggman can be reached at mhaggman@floridabiz.com or at (305) 347-6649. This articles is reprinted with permission from the June 4, 2002 addition of the Miami Daily Business Review.