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The Honolulu Advertiser
Posted on: Thursday, November 1, 2007

Hawaii artist prevails in lawsuit over photo

By Mary Vorsino
Advertiser Staff Writer

Hawaii news photo - The Honolulu Advertiser

Kim Taylor Reece's photo, titled "Makanani," was taken in 1988, while Marylee Leialoha Colucci finished her piece, "Nohe," in 1998.

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Hawaii news photo - The Honolulu Advertiser
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Photographer Kim Taylor Reece has prevailed in a controversial lawsuit in which he alleged a stained-glass artist had made an illegal copy of one of his photos.

The suit was settled Friday and requires Island Treasures Art Gallery in Kailua and artist Marylee Leialoha Colucci to pay Reece $60,000 for attorney's fees, according to Reece and his attorney, Mark Bernstein.

The stained-glass work at the center of the suit also cannot be publicly displayed, sold or offered for sale, Bernstein said. And Colucci cannot make other works that copy Reece photographs. Meanwhile, Colucci and Gail Allen, the owner of the art gallery, accept no guilt as part of the settlement.

The case spurred anger among some Native Hawaiians, who accused Reece of trying to copyright a well-known hula pose. They also said the suit was part of a widescale effort to trademark pieces of Hawaiian culture.

"The issue is not one painting. The issue is not one sculpture. The issue is who is he (Reece) to own that pose?" said Wayne Panoke, executive director of the 'Ilioulaokalani Coalition. "As far as I'm concerned, he'll never own it."

Panoke said the settlement did not answer the fundamental question many had of how a hula pose can be protected under copyright laws. But Reece's lawyer, Bernstein, said the lawsuit was never about a pose but an image.

"Like all cases, you have the problem between the perception in the public versus the reality of the claims," Bernstein said. "Kim Taylor Reece's claims have never been other than someone had copied his copyrighted photograph. It's the photograph. It's the angle of the photograph. It's not the pose."

The lawsuit centers on two pieces of art Reece's black-and-white photo, titled "Makanani," which was taken and published in 1988; and Colucci's stained-glass portrait, called "Nohe," which was completed in 1998.

Both pieces show a hula dancer performing an "ike" move, with one arm outstretched and the other bent at the elbow with her hand near her face. Both dancers are in kahiko hula attire and in a sitting position on sand.

Colucci has said she did not copy Reece's photo. The inspiration for her stained-glass piece, she said, came from her niece and other hula dancers.

Neither Colucci nor Allen could be reached for comment yesterday.

But their attorney, Camille Kalama, of the Native Hawaiian Legal Corp., said the settlement was made because the defendants wanted to end the year-long lawsuit and weren't interested in moving forward to a jury trial.

"It's been a tough year for the defendants," Kalama said. She would not comment further.

Reece said the suit was about protecting an original piece of art. He said not going forward with the case would have put his work and other artists in danger.

"It wasn't a cultural thing. It was a copyright thing. I never said I own the hula," said Reece, who owns two galleries on O'ahu. "It was about protecting my property rights. My images are very close to me. Basically, what I think is, if you're going to create something, make it your own and don't be tracing."

Reece said the case was "straightforward," and wrongfully turned into "political football," but added he has received support from friends in the Hawaiian community who agreed with his position on the stained-glass work.

The lawsuit was filed in November 2006, and a month later Reece lost a bid for a preliminary injunction against Island Treasures and Colucci, which would have forced the two to remove the stained-glass piece from public view immediately.

An employee at Island Treasures said yesterday the piece is no longer on display at the shop, but she did not know when it had been taken down.

Correction: A stained-glass piece by artist Marylee Leialoha Colucci can be publicly, but not commercially, displayed under the terms of a settlement agreement reached last week. A previous version of this story about a lawsuit involving the piece and a photo by Kim Taylor Reece contained incorrect information. The story also failed to make it clear that some details of the settlement are not yet final and the agreement must still be approved by a judge.

Reach Mary Vorsino at mvorsino@honoluluadvertiser.com.