Wacka Wacka Hula Hula

Hawaii has been a feature in our house recently, with the release, by Nickelodeon, of the Backyardigans "The Legend of the Volcano Sisters." Those who do not have children in the 4-7 range may have missed the Backyardigans, but it is a great animated show on Nick Jr. The music is really really good (a rarity in children's shows) and so are the stories, revolving around 5 characters with animal shapes (Austin, Pablo, Tasha, Tyrone, Uniqua), who set off on adventures from their backyard. Those adventures take them to far away places, like space and Hawaii. In the Legend of the Volcano Sisters, Tasha and Uniqua insist that the boys guess what it is they want but if they guess incorrectly, they will unlease a volcano. Ultimately, they guess correctly, which is merely to invite the sisters to a luau.

Hawaii is not exactly a hotbed of copyright disputes, but a recent one bears mention, Reece v. Island Treasures Art Gallery, 2006 WL 3804685 (D. Hawaii Dec. 22, 2006). Plaintiff claimed her photograph of a hula dancer was infringed by defendant's stained glass artwork. Judge Seabright denied plaintiff's motion for a preliminary injunction in a very wonderful opinion canvassing originality, the idea-expression dichotomy, the scenes a fair doctrine and Hawaiian culture. Here's the most important part of the opinion:

The protectable elements of a photograph generally include lighting, selection of film and camera, angle of photograph, and determination of the precise time when the photograph is to be taken. ... In the Ninth Circuit, “courts have recognized repeatedly that the creative decisions involved in producing a photograph may render it sufficiently original to be copyrightable and ‘have carefully delineated selection of subject, posture, background, lighting, and perhaps even perspective alone as protectable elements of a photographer's work.’ ...

The idea of a hula dancer performing an ‘ike movement in the hula kahiko style from the noho position is not protected. Further, the parties agree that the ‘ike motion itself is not protected. Instead, the protected elements of Plaintiff's “Makanani” are limited to those that derive from the Plaintiff's expression of the idea of a hula dancer performing the ‘ike motion. Plaintiff's expression of those ideas include the angle, timing, and lighting of the photograph, as well as the expression of the hula kahiko performance and dress. Unprotected elements of the photograph are those that are not original, but are part of the public domain, including natural elements like the ocean and shoreline. See Satava, 323 F.3d at 813 (“These ideas, first expressed by nature, are the common heritage of humankind, and no artist may use copyright law to prevent others from depicting them. An artist may, however, protect the original expression he or she contributes to these ideas.”).

Once the court separates the protectable from the unprotectable elements, the court “must then apply the relevant limiting doctrines. Under the doctrine of scenes a faire, when similar features are indispensable and naturally associated with, or at least standard, in the treatment of given idea, they are treated like ideas and are therefore not protected by copyright....

Elements particular to the hula kahiko tradition are scenes a faire. Hula movements have standard forms and to perform an ‘ike motion, “a dancer raises one hand out and one arm is bent at the elbow and the hand is open and placed behind the eye with the thumb facing downwards and the finger to show the seeing motion.” ... At the hearing, de Silva testified that the right hand would naturally be up-“always up because your knowledge does not come from yourself. It comes from your kupuna. It comes from everything that's come before you and that's always up towards the heavens.” 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. Further, the dancer's hula kahiko dress is scenes a faire; the proper dress required a p;a’;u, four k;upe‘e, and a lei ‘;a’;i and lei po‘o. See de Silva Decl. at ¶ 23. Because these elements are scenes a faire, they not protected by copyright.

When the protected elements of Plaintiff's “Makanani,” viewed in isolation, are compared to the stained glass artwork, their differences are clear. The angle and perspective of the pieces are very similar (both viewed in profile from the dancer's left side), but the position of the subject dancer relative to her setting is not. The dancer in “Makanani” kneels in the shorebreak with waves splashing her knees, facing the ocean, and appears large and tightly focused in relation to the unfocused shoreline distant in the background. On the other hand, the dancer in “Nohe” kneels on the beach, but does not face the ocean-which is directly behind her-and the top portion of the piece is dominated by the smaller island jetting out of the ocean. The angle and position of the dancers' bodies are in the standard ‘ike position, but even those angles vary slightly. Plaintiff's Exhibit 2 is a transparent black and white overlay of the “Makanani” model, placed over a color copy of “Nohe,” which shows that the dancers' outstretched right arms are not perfectly aligned (the top of the “Makanani” right arm is higher and does not appear to bend at the elbow, as “Nohe's” does). Exhibit 2 also shows that the position of the dancer's left foot is different, and that “Makanani's” foot and heel are larger and extend farther along the sand. Exhibit 2 demonstrates the difference in the angle and thickness of the dancer's bent left arm and hand (“Makanani's left elbow and forearm extend farther to the left and are thicker than “Nohe's,” and “Makanani's” left hand appears to be open, exposing the palm, while “Nohe's” left hand appears closed). Finally, although difficult to discern from Exhibit 2, Plaintiff's “Makanani” appears to be bending further backward than “Nohe,” with her back in a more arched position.

Plaintiff's timing and decision when to take the photograph is protected, but these elements are not relevant to any similarities found in the stained glass piece. Plaintiff's decision to take the shot at the moment the wave reached the model, so that the water can been seen splashing into her knees, is unique to “Makanani.” There is no wave crashing up against the dancer in “Nohe;” in fact, the dancer is positioned well away from the ocean. The lighting element is unique to the photograph. The striking contrast between dark and light and the shading of the sepia “Makanani” are absent from the stained glass. For example, the light coloring of the dancer's left arm and hand in “Makanani” is completely absent in “Nohe.” Instead, the flesh color in “Nohe” appears to be monotone throughout.

“Makanani's” expression of the traditional hula kahiko dress is different from “Nohe's.” Although both wear the traditional k;upe‘e on wrists and ankles and lei around the head and neck, the leaves in the stained glass are bright green and clearly delineated, in contrast to the photograph's darker, fuller, less clearly delineated leaves. Significantly, although the lei are worn in the same position around the neck and down the bare torso, the lei around “Nohe's” neck is thinner and composed of maile interwoven with colorful ‘ilima. “Makanani” appears to wear multiple strands of maile around her neck, which are denser and without ‘ilima interwoven. The meaning of this lei-and therefore its expression-is distinct, because the kinolau represent different ideas. With respect to the Plaintiff's expression of the traditional lei po‘o around the head, “Nohe's” is visible only on the front and top of her head, while “Makanani's” is composed of more leaves and is more clearly visible all around the head. Finally, the cloth worn by the dancers is worn in the same style, but expressed in a different fabric; the model in the photograph wears a printed fabric with designs in contrast to the plain, off-white fabric in the stained glass.

The facial expression of the dancer in “Makanani”-a serious, contemplative appearance-is fully absent from the featureless face in “Nohe.” Colucci testified that in all of her work, including “Nohe,” she omitted facial features in an effort to represent all Hawaiian hula dancers, not just a single dancer. The remaining similarity is the dancers' dark, windblown hair. Plaintiff's Exhibit 2 clearly shows the differences in the dancers' hair. “Makanani's” is shorter, more bluntly cut and reaches to the waistline. On the other hand, the hair in the stained glass flows all the way to the left edge of the piece and extends beyond the dancer's hips, with clearly outlined strands and pointy, sharp ends.

Upon careful examination, for the purposes of this motion, the court concludes that Plaintiff has failed to demonstrate that the protected elements of Plaintiff's photograph are substantially similar to the stained glass artwork. In the context of “thin” protection, “Makanani” and “Nohe” are not virtually identical. Although the position of the dancer in the ‘ike motion is common to both artworks and both are set on Kailua beach, they cannot be described as substantially or virtually identical. The appearance of the dancers is different; notably, the absence of detail in the stained glass. The dancer represented in “Nohe” has no facial features, hand details, or muscular differentiation, but simply shows the outline of the body. The mountains and ocean dominate the upper half of the stained glass, but not the photograph. The dancers' hairstyles are notably different lengths and shapes. Finally, the sepia tone of the photograph is markedly contrasted by the vibrant colors of the stained glass.