Excluding the pose of a Hawaiian hula dancer from the “protected elements” of a famous photograph, a federal judge has dealt a severe blow to the photographer's copyright infringement case against an Oahu art gallery.

Both the photo “Makanani” taken by Kim Taylor Reece and the stained glass piece “Nohe” by Marylee Colucci depict a traditional “hula kahiko” dancer on Oahu's Kailua beach performing an “`ike” motion with her right arm pointed skyward. Reece filed suit in September after learning that “Nohe” was on display at Island Treasures Art Gallery.

“[T]he stained glass artwork 'Nohe' is not a copy of the protected elements of Plaintiff’s photograph,” U.S. District Judge J. Michael Seabright said in ruling that Reece was unlikely to prevail on the merits of his case and denying him injunctive relief.

The photographer wanted the court to order Island Treasures to stop displaying “Nohe,” arguing that “The infringing image is at least substantially similar to the original photograph, and in fact is virtually identical to the original.”

In a similar case, another federal judge in 1998 enjoined an operator of duty-free stores from using a logo that allegedly infringed on the “Makanani” copyright. The protected elements of the photo, Judge Helen Gillmor said, included the dancer's “position.”

But Seabright invoked the doctrine of “scenes a faire,” under which courts do not protect a copyrighted work from infringement if the way the particular idea is expressed necessarily flows from -– or is “naturally associated with” -- the idea itself.

“Hula movements have standard forms,” Seabright, citing the testimony of a hula expert, noted in his order, and

To the extent the dancers in the artworks are performing an `ike motion from the noho position, their similar features are indispensable, naturally associated with the motion, or at least standard.

Comparing the protected elements of the photo to “Nohe,” the judge went on to find “clear” differences in, among other things, the expression of the traditional hula dress and the dancer's hairstyle.

Reece intends to take the case to a jury, telling the Honolulu Advertiser, "A third-grader can see that they traced this thing.” But in reaching his decision, Seabright used a transparent black-and-white overlay of the “Makanani” model placed on top of a color copy of “Nohe.”

“On balance, the court cannot say that the works are substantially similar, much less that they are virtually identical,” he concluded.