"Makanani"

Over the objections of Native Hawaiians, a well-known Hawaii photographer is claiming that a piece of stained glass art violates his copyright in an image of a hula dancer on a beach.

Copyright protection for visual works is generally a trickier legal area than protection for literary works. And Kim Taylor Reece's infringement suit raises the issue of whether the dancer's pose in his photograph called “Makanani” is protectable as a matter of law.

Reece, who specializes in sepia-toned images of the ancient hula, alleges the Island Treasures Art Gallery in Kailua has offered for sale “a stained glass window work bearing an unauthorized copy” of his work.

"Nohe"

“Makanani,” which has appeared on thousands of posters and greeting cards, and the alleged copy (right) both depict a hula dancer posed with her right arm pointed skyward. The stained glass artist used color and a different background.

“The infringing image is at least substantially similar to the original photograph, and in fact is virtually identical to the original,” the complaint says.

According to a Honolulu TV station, however, some Native Hawaiians see the lawsuit as an insult to the hula community. Reece “doesn't own the copyright on any movement, any position in hula,” Vicky Holt Takamine, a hula teacher, told KGMB9.

Under U.S Supreme Court precedent, a photographic work consisting of “original elements” is subject to copyright. In a motion for a preliminary injunction, Reece claims the original elements in his photo include the accessories worn by the model and the angle from which the photo was taken.

“Mr. Reece also planned the particular pose of the model,” the brief says. “All of this was done to emphasize the upward reach of the model's right arm and hand.”

In 1998, a judge enjoined an operator of duty-free stores from using a logo that allegedly infringed on the “Makanani” copyright. Reece's selection of the subject's position, expression, attire and accessories were all protectable elements, U.S. District Judge Helen Gillmor said.

A New York judge recently ruled that elements of a photograph of NBA star Kevin Garnett including his pose and jewelry “may not be copyrightable in and of themselves, but their existence and arrangement in this photograph indisputably contribute to its originality.” But U.S. District Judge Lewis A. Kaplan refused to find infringement as a matter of law in Mannion v. Coors Brewing.

A reproduction of a hula pose obviously isn't copyrightable in and of itself. And it should at least be a triable issue whether Reece's “creation of the subject” is deserving of protection from a work that is certainly not a “slavish copy.”

By Matthew Heller
11/3/06