Ka Wai Ola - Office of Hawaiian Affairs, Volume 10, Number 5, 1 May 1993 — ©opyright theft threatens Hawaiʻi artists [ARTICLE+ILLUSTRATION]

©opyright theft threatens Hawaiʻi artists

by Patrick Johnston When Althea Poakalani Serrao was young, her grandmother told her that she wanted to leave behind something Hawaiian to educate her children and make them proud of their heritage. She chose her quilt pattems. Six years after her grandmother's death, Ahhea and her husband John, recognizing the value of the gift, took the patterns (some 300 in all, depicting various images from the Hawaiian natural landscape) expanded on them, and began using them for cushion and quilt design. Their work has brought them praise from across the country. But the modem world of copyright theft and corporate litigation has caught up with Poakalani and her husband. They are now in the middle of legal proceedings to determine whether a foreign textile company is guilty of illegally infringing on their copyrights and using them for commercial purposes. The Serraos' legal battle has implications, not only for the preservation of their business and art form. but for any native Hawaiian interested in controlling how their creative work is used. The Serraos' story began in 1972 when they started using Poakalani's grandmother's work to design cushion pattems. They copyrighted their patterns, marketed them and created an extensive collection of original works whieh they use for both pillows and quilts. In August of 1992, the Serraos found that Trans-Pacific Textiles, a Japan-based fabric designer company, had taken the Serraos'

designs, used them on their own products, and was selling them in department stores state w ide . When the Serraos protested, the e o m p a n y claimed they didn't know who had done the designs.

i ney [Trans-Pacific] just said someone had eome by and dropped them off," says John Serrao. TransPacific paid the Serraos $1000 and promised to destroy their prints. However, the company continued to use Poakalani and her husband's patterns. The Serraos twice found Trans-Pacific violating their copyright after the initial discovery. Trans-Pacific tried to negotiate

another deal with the Serraos, offering $5,000 for damages and the rights to all of their work. Realizing that this would put them out of business, Poakalani and her husband decided to pursue litigation. Following a request by the Serraos, OHA staff and trustees are now considering providing financial assistance to help offset legal fees. OHA Eeonomie Development officer Linda Colburn believes the issue involves not just helping a Hawaiian eouple in need but using the case to help and inform all Hawaiian artists about the importance of protecting creative work from profiteering individuals and corporations. "Art" here includes, not just quilt design, but also music, carvings or any creative activity native Hawaiians are engaged in. "We should not let manufacturers profit from our creative work ... If we were a wealthy eommunity at the top of society we could ignore what these companies are doing but that is not the case." Colburn also argues that allowing art to be recreated in a bastardized form reduces the cultural importance of the work-if the process is repeated often enough it reduces the cultural importance of the society itself. "Manufacturers who profit from Hawaiian creations duplicate, trivialize, and in the process destroy Hawaiian culture," she said. Proprietary rights-the artist's control of his work-are central to the issue. Unless an artist makes the necessary efforts to protect his work, it is legal for anyone to take the design and use it for their own purposes, regardless of the

|0 r ī g ī n a 1 intent of the creator. For Hawaiians, and Hawaiian artists, this has added importance b e e a u s e mueh of the art that is produced has religious pr spiritual significance and the use

or misuse ot such artifacts ean be a serious affront legally, and morally, to the creator. Understanding the technical and legal details surrounding copyright is crucial if an artist wants to have control over his or her work. Serrao attorney Lanee Dubos explains that you must register copyrights with the federal government if you want adequate protection. "Anyone who creates

a work of art and wants to protect it must register the work with the copyright office in Washington. The process involves filling out a two page form and sending it with a sample of what you want to protect." Every work of art, if copyrighted by the artist (signed and accompanied by a encircled 'e') is protected by 'eommon law' copyright. This only allows the

artist to stop violation if his copyright is infringed however; it does not allow the artist to collect any compensation for legal fees or damages if a suit is filed. Registering allows for full eompensation. Poakalani and her husband did not register their art until 1991. They cannot receive any damages on infringements before registration.

Timing is important. If a eompany or individual ean prove that they have put the art to use before it has been registered, then they ean sidestep paying damages. At issue with the Serraos is determining whether Trans-Pacific began using the designs before the Serraos actually registered it. Also at issue with the Serrao case is whether the art had been put into the "public domain." If continued on page 7

'Ulu design quilted by Poakalani

continued from page 6 an artist has pictures of his or her art published in newspapers or magazines without the copyright clearly visible then it effectively becomes public property and free for anyone to use. (The quilts photographed for Ka Wai Ola have older designs whieh the Serraos are not interested in copyrighting) In 1978 a quilt magazine published the Serrao designs and distributed a limited number of copies to its readers, largely managers and owners of dry goods stores. Fortunately for the Serraos, the law changed in 1978, allowing for a limited amount of public display before being legally considered part of the public domain. According to Dubos, the hundred copies that were distributed fall within those guidelines. For Hawaiian artists Dubos urges vigilance when showing art to the public. "Anyone who creates a pieee of art should be very careful if you want to show it in public. The copyright mark should be on the front and plainly visible so that anyone who looks at the work of art ean see it. ... Artists bear the responsibility for their own copyright."

A far less clear issue relates to determining how mueh the art has been changed, either by adding color or altering the image, for it to accurately be called copyright infringement. If the art has been changed more than 30 percent then there is no copyright infringement. Determining what constitutes 30 percent is a very complicated legal endeavor. Dubos explains, "It requires an ad hoe determination on a case by case basis. ... there are no set rules that you ean automatically say this is this or that is that. The law does not resolve eaeh case." For the Serraos, this laek of clarity is making the process a drawn out, frustrating-and cost-ly-endeavor. Poakalani is eonvinced however, that what she is doing will eventually benefit all Hawaiians. "I am going to help every single Hawaiian. This is our heritage and I'm tired of Hawaiian brains being picked on. ... No foreign country is going to get what is Hawai'i's." For Hawaiian artists the message is clear-if they want to save their art and heritage they have to take the time and protect it.