Copyright Dispute Over Miss Hawaiian Tropics Bikini Photographs

Blair sued the various business entities that comprise Hawaiian Tropic, the popular tanning-product company that sponsors Miss Hawaiian Tropic contests across the globe. Hawaiian Tropic would hire Blair to take photographs of models at various Miss Hawaiian Tropic events. Hawaiian Tropic paid his expenses, but they never issued him a W2 or provided employee benefits. While at these events, Blair took pictures of the models when they were not competing.

After the events, Blair would send all the images to Hawaiian Tropics on computer disk. Blair claimed they had an oral agreement that Hawaiian Tropics could used the photographs in calendars if they provided him a photographer’s credit and that he would own the copyright. Hawaiian Tropics claims they own the photographs because Blair is a Hawaiian Tropics employe. Alternatively, Hawaiian Tropics claims they had a license to use the photographs as they chose and published a number of the photographs in calendars without giving Blair credit. He filed suit for copyright infringement and both parties moved for summary judgment.

The court denied the motions for summary judgment. The court held that Blair was not an employee of Hawaiian Tropics and owns the copyright to the photographs. As to the existence of a license, the court held that an issue of fact existed for the jury to determine.

Appellate Practice

Appellants in Three Cases Ordered to Follow the Abstracting Rules

LandsnPulaski, LLC v. Arkansas State Dept. of Correction, No. 06-1334, is an appeal from a grant of judgment on the pleadings. Rylwell, Inc. and Pulaski Lands, LLC v. Arkansas Development and Finance Authority, No. 07-334, is an appeal from a grant of summary judgment. City of Dardenelle, Arkansas v. City of Russellville, et al., No. 07-195, is an appeal from a grant of a motion to dismiss.

The Arkansas Supreme Court ordered rebriefing in each case for failure to abstract the relevant hearings. LandsnPulaski included a “summary” of the arguments in the abstract instead of the first-person rendering of testimony and argument called for by the rule, while Rylwell and Dardenelle placed transcripts of the relevant hearings in their respective addendums.

We have noted before the “Hobson’s Choice” presented by Rule 4-2(a)(5): “If the appellant’s attorney omits something from the abstract, the appellate court will not reach the issue,” the result being an inefficient “tendency . . . for the attorney to abstract virtually everything in the record, even material of marginal relevance to the issues on appeal.” John J. Watkins & Price Marshall, A Modest Proposal: Simplify Arkansas Appellate Procedure by Abolishing the Abstracting Requirement, 53 Ark. L. Rev. 37, 45-46 (2000).

These cases don’t present that dilemma, however. The portion of the transcript containing the hearing where the court granted dispositive relief is obviously a “material part[] of the testimony of the witnesses and colloquies between the court and counsel and other parties as [is] necessary to an understanding of all questions presented to the Court for decision,” Ark. Sup. Ct. R. 4-2(a)(5), and therefore must be abstracted.

The Court has made clear several times that including a transcript of a hearing in the addendum does not comply with the rule. See Hanners v. Giant Oil Co. of Arkansas, 369 Ark. 226 (2007) (transcript of summary judgment hearing should have been abstracted rather than included in the addendum); Calaway v. Dickson, 360 Ark. 463, 201 S.W.3d 931 (2005) (same with respect to transcript of Rule 11 hearing). Preparing a summary of the argument apparently does not suffice any more than including a transcript of the arguments in the Addendum would.