A well-known photographer of “hula” dancers may have exposed himself to defamation liability by accusing a stained glass artist of copying his work before he named her as a defendant in a copyright infringement action.

Kim Taylor Reece alleged in September 2006 that a piece of stained glass art on display at a Kailua gallery violated his copyright in an image of a hula dancer on a beach. He listed the gallery and its owner as defendants in the original complaint, only adding the artist –- Marylee Leialoha Colucci –- to the list when he amended the suit in February.

In a counterclaim, Colucci now says Reece defamed her in comments he made to the press in November and December about the similarities between his “Makanani” image and her stained glass work entitled “Nohe.” Both depict a hula dancer posed with her right arm pointed skyward.

Among other things, Reece said “It's almost a perfect copy” and “A third-grader can see that they traced this thing.”

Hawaii law applies an absolute litigation privilege to words and writings that are “material and pertinent” to judicial proceedings. But Reece spoke to the press before he had specifically initiated proceedings against Colucci and, the countersuit says,

Reece's words imputed to Colucci the commission of a crime by attempting to sell a work of art that was a copy of “Makanani” and are thus per se libelous in the State of Hawaii.

Reece could argue he is still entitled to the protection of the litigation privilege because he didn't impute anything that wasn't in the original complaint. “The infringing image is at least substantially similar to the original photograph, and in fact is virtually identical to the original,” the suit said.

But the photographer's extrajudicial comments may not have been “material and pertinent” under out-of-state precedent involving “litigation in the press” by attorneys for Michael Jackson.

In Rothman v. Jackson, 49 Cal.App.4th 1134 (1996), a California appeals court ruled that a “communicative act -- be it a document filed with the court, a letter between counsel or an oral statement -- must function as a necessary or useful step in the litigation process” for the litigation privilege to apply.

“Public mudslinging” is not protectable communication, the court said, concluding that “the litigation privilege should not be extended to 'litigating in the press.'"

The 9th U.S. Circuit Court of Appeals, which has jurisdiction over Hawaii, cited Rothman in finding the privilege did not apply to a slander case against pop star George Michael. “Extending the privilege to statements made ... without a purpose in the litigation process, would not be consistent with the objectives of the litigation privilege,” it said in Rodriguez v. Panayiotou, 314 F.3d 979 (2002).

A Hawaii judge ruled in December that Reece was unlikely to prevail on the merits of his copyright case and denied his motion for injunctive relief. A jury trial is currently scheduled for Nov. 14.

By Matthew Heller
3/15/07