Posted on: Saturday, July 10, 2004
Photographer sues T-shirt maker
By Sean Hao
Advertiser Staff Writer
Popular island photographer Kim Taylor Reece is suing Quiksilver Inc., alleging that a design on one of the clothing company's T-shirts mimics one of his photos of a hula dancer.
Advertiser library photo Reece's attorney, Paul Maki, said the artist noticed similarities between his work and a shirt purchased at Macy's in late April. He said the shirt, which depicts a drawing of a hula dancer, bears a striking resemblance to a photo of a hula dancer in Reece's book "Hula Kahiko, Images of Hawai'i's Ancient Hula."
"You can look at 10,000 pictures of hula dancers and you're not going to find another one like this," Maki said, referring to his client's photo.
The suit, filed Thursday in U.S. District Court in Honolulu, seeks to stop Quiksilver from selling the shirts and any other products with similar images. The suit also seeks unspecified damages and any profits derived from the sale of the shirts.
A spokesman for Huntington Beach, Calif.-based Quiksilver said the company does not comment on pending litigation.
Maki said the Quiksilver lawsuit is the fifth or sixth filed on behalf of Reece relating to infringement on his copyrighted photos of hula dancers. The previous cases were settled out of court, Maki said.
He said Reece doesn't seek copyright protection for hula poses but, rather, his depictions of them. Although the dancer in both the photograph and the shirt are similarly posed, the resemblance goes beyond that, Maki said. Some features are nearly identical, such as the position of the dancer's fingers and toes and the lighting of the dancer's midsection.
Unless it's obvious, the court's first test in a case such as Reece's is showing that the defendant had access to the copyrighted work, said Honolulu patent attorney George Darby. After that it becomes a question of whether there is "substantial similarity" between the two works, he said.
" 'Substantial similarity' is a case-by-case analysis and addresses every major similarity and dissimilarity in graphic content and technical method," Darby said. "The (greater the) number of features that, if not identical, are similar, the closer you are to crossing the line."
In looking at the two depictions of a hula dancer, Darby noted differences such as a head lei and a different skirt on the T-shirt's dancer. At the same time there are similarities in the overall pose and the position of the toes, he said.
"In my opinion, the court will ask, 'Are these differences enough to overcome the remaining similarities — i.e., is there substantial similarity?,' " Darby said. "I would not want to be the defendant."
Reach Sean Hao at shao@honoluluadvertiser.com or 525-8093.
This hula dancer portrayed on a Quiksilver shirt is the subject of a lawsuit by photographer Kim Taylor Reece, who claims that the image was derived from a photo in his book about ancient hula.
