Gallery display of hula artwork allowed
They are different expressions of the same idea, and therefore one is not a copy of the other.
That is the assessment of a federal judge presiding over a copyright infringement lawsuit regarding two pieces of art depicting a female dancer performing the same traditional hula movement.
U.S. District Court Judge Michael Seabright denied yesterday photographer Kim Taylor Reece's request to order a Kailua art gallery to stop displaying a stained-glass art piece similar to one of his copyrighted photographs.
"This is a good day for all artists because it is our right to make what we want. And mine is hula girls," said Marylee Colucci, whose stained-glass piece is at the center of the lawsuit.
COURTESY OF KIM TAYLOR REECE
Kim Taylor Reece:
The photographer claims copyright infringement by Island Treasures gallery
The ruling applies just to Reece's request for an injunction, not the entire case. He did not have to prove his case to get the injunction, just that he is likely to win at trial, said Camille Kalama, staff attorney for Native Hawaiian Legal Corp., which is defending Island Treasures Art Gallery and its owner, Gail Allen.
"The purpose of the preliminary injunction and one of the elements is to test the strength of his case, and so what this says is his case is very weak," Kalama said.
Colucci said she had drawn on her experience as a hula dancer and a photograph of her niece performing the movement for the stained-glass piece. She said she had never seen Reece's work.
Reece is suing Allen and the gallery, not Colucci.
Mapuana de Silva, Colucci's kumu hula who testified on the defendants' behalf during a hearing earlier this month, said Colucci's stained-glass artwork is now a symbol of Hawaiians' fight to protect their traditions.
"This piece belongs to all of the Hawaiians because it's going to help us to define what are our rights, what are our intellectual rights, our native rights as Hawaiians," de Silva said.
STAR-BULLETIN / NOVEMBER 2006
The artist says her artwork in stained glass was inspired by her practice of hula
In his written ruling, Seabright said that while the dancers in both pieces appear to have the same poses, they are depicting a traditional hula movement that is in the public domain and cannot be copyrighted.
"No one can own our hula, no one," said kumu hula Vicky Holt Takamine, who was an adviser in the case for the gallery owner. "You can photograph it. You own your photograph and that's all you own."
Seabright said the backgrounds of the two pieces are different, and because they are in different media, the feelings they evoke are also different.
He also found that the dancers' body positions, even though they are performing the same movement, are not identical. Their hair and attire, including their leis, are also not identical, Seabright said.
Allen had displayed Colucci's artwork in her Kailua gallery for several years on consignment. She removed the piece after Reece's attorney contacted her in May and demanded she stop using a copy of his client's photograph. In July she put the artwork back on display after Colucci told her the piece was not a copy of Reece's photograph. Reece sued in September.
"I think it's just a frivolous lawsuit. I think it's just really a shame. I feel sorry for him," Allen said.
She said after Reece filed his lawsuit, another artist who depicts hula dancers in stained glass removed all of his pieces from the gallery for fear he too would be sued.
Kalama said she looks forward to going to trial if Reece decides to continue to pursue his lawsuit.
Reece did not return messages left at his gallery.