Copyright Date
September 20, 2018
Court Osaka District Court,
26th Civil Division
Case number
2015 (Wa) 2570
- A case in which the court approved copyrightability for the choreographies of huladance created by Plaintiff, and granted an injunction against stage performance ofPlaintiff's choreographies.
Case type: Injunction, etc
Result: Partially granted
References: Article 10, paragraph (1), item (iii) of Copyright Act
Summary of the Judgment
1.

In the present case, Plaintiff (a kumu hula, or a master teacher or instructor ofhula dance, residing in Hawaii), who, under an agreement with Defendant, used togive instructions to the members of Defendant, an operator of hula dance schools,on the choreographies of hula dance which were personally created by Plaintiff,
asserted that the Defendant's act of having its members perform thechoreographies created by Plaintiff even after dissolution of Defendant's
contractual relationship with Plaintiff constitutes infringement of copyright (stage
performance right), which Plaintiff has over the choreographies, thereby
demanding for an injunction against the stage performance of the choreographies.
Points of concern included copyrightability of choreographies.

2.

In the judgment of the present case, the court held as follows concerning the
aforementioned point of concern.

Generally, hula dance is used as a means forrepresenting lyrics, and it consists of hand motions in which the movements
corresponding to specific words are predetermined, and of typical and existing
steps which do not represent lyrics.

Given these characteristics, [i] (i) in thechoreographies of a specific song, if the hand motions, which are used in places
corresponding to lyrics, are such that they can be assumed from the lyrics
concerned, or (ii) in the choreographies for a certain lyrics part, if the handmotions used are not the same as existing hand motions, or even in the case where
there are no predetermined hand motions, if the movement is the same as thatwhich is used in other choreographies, which are found in the same song or adifferent song, and which correspond to the same lyrics part, it shall not be
acknowledged that the author's personality is expressed, and [ii] even if thechoreographies for a certain lyrics part are different from existing hand motions orother similar examples, if the difference is such that it only concerns a minor partor an unnoticeable part of the movement, it shall not be acknowledged, on theⅰbasis of such difference, that the author's personality is expressed, and [iii] even if
the difference with existing hand motions or other similar examples is merelycommonplace, such as whether the movement is performed with one hand or both
hands, or with the right hand or the left hand, it shall not be acknowledged that thedifference shows the author's personality, and [iv] with regards to the steps,
basically it shall not be acknowledged that the author's personality is shown
therein, but if the steps are new and noticeably different from existing steps, it
shall be acknowledged that the author's personality is shown in the representationby the steps per se, and [v] if, by combining hand motions with steps, it isacknowledged that the representation of lyrics is noticeably amplified, or that thedancing effect is noticeably increased, it shall be approved that the movement of
the choreographies concerned, in which the hand motions and steps are considered
as a whole, shows the author's personality.

On that premise, since hula dance, aschoreography of a song, consists of a series of flows that combines parts showing
the choreographer's personality and parts not showing it, and given that the subjectof copyright is the whole of such flows of actions, such actions constitute a dance,
and if, among such actions, the parts showing the choreographer's personality
appear over a certain extent, copyrightability of dance shall be acknowledged on
the whole of the series of flows.

Based on these theories, the court approved

copyrightability for all six choreographies presented by Plaintiff.

ⅱ

Judgment rendered on September 20, 2018
Original received by court clerk on the same day2015 (Wa) 2570 Case of seeking injunction against copyright infringement etc.
Date of conclusion of oral argument: May 15, 2018
Judgment
Plaintiff: P1
Defendant: Yugen Kaisha Kyushu Hawaiian Association
Main text
Defendant shall not perform the choreographies numbered 6, 11, 13, and 15 to1.

17 indicated on the attached List of Choreographies, nor have any member who
belongs to Defendant or any other third party perform said choreographies at thefacilities in Japan where Defendant teaches hula dance to the members belonging
to Defendant, or where Defendant performs hula dance, including the facilities
indicated on the attached List of Schools.
2.

Defendant shall pay to Plaintiff a sum of 433,158 yen along with the interest
accruing therefrom at the rate of 5% per annum from November 1, 2017 until thedate of payment in full.

3.

Other claims made by Plaintiff shall be dismissed.

4.

The court costs shall be divided into five portions, three of which shall beborne by Plaintiff, while the remaining two shall be borne by Defendant.

5.

Only Section 2 of this judgment can be provisionally executed.

6.

The additional period for filing an appeal against this judgment shall be 30days for Plaintiff.
Facts and reasons

No. 1
1.

ClaimsDefendant shall not perform the choreographies indicated on the attached Listof Choreographies, nor have any member who belongs to Defendant or any otherthird party perform said choreographies at the facilities in Japan where Defendantteaches hula dance to the members belonging to Defendant, or where Defendant
performs hula dance, including the facilities indicated on the attached List of
Schools.
1

2.

Defendant shall not play the musical works indicated on the attached List ofSongs at the facilities in Japan where Defendant teaches hula dance to themembers belonging to Defendant, or where Defendant performs hula dance,
including the facilities indicated on the attached List of Schools, by any of thefollowing methods:(1) Having a singer sing the work;(2) Having an instrument player perform the work on ukulele, guitar, bass,
keyboard, drum set, percussion, or the like; and(3) Playing the work by operating a reproduction device for recordings.

3.

Defendant shall pay to Plaintiff a sum of 2,503,440 yen along with the interest
accruing therefrom at the rate of 5% per annum from November 1, 2017 until thedate of payment in full.

4.

Defendant shall pay to Plaintiff a sum of 3,851,910 yen along with the money
accruing therefrom at the rate of 6% per annum from March 26, 2015 until thedate of payment in full.

No. 2

Outline of the case

1. Summary of claims
Previously, Plaintiff, who is kumu hula (a master teacher or instructor of huladance) and currently lives in Hawaii, concluded a contract with Defendant, who
operates hula schools, and taught and gave guidance on hula dance to Defendantor to Kyushu Hawaiian Association (hereinafter referred to as "KHA"), which issubstantively operated by Defendant, and to members of the Association, but thecontractual relationship between Plaintiff and Defendant was dissolved.

The

present case concerns the following claims which Plaintiff made against
Defendant.
(1)

Plaintiff alleged that the act by Defendant's president of personallyperforming, or having its members perform, the choreographies indicated in
the attached List of Choreographies (hereinafter referred to as "Choreography
1" and so on according to the numbers given, and collectively referred to as"Choreographies") at the facilities where Defendant teaches hula dance to its
members, or where Defendant performs hula dance, constitutes infringement of
the copyright (stage performance right) which Plaintiff has over the
Choreographies, thereby demanding against Defendant for an injunction
against the stage performance of the Choreographies pursuant to Article 112,
paragraph (1) of the Copyright Act (No. 1-1).

(2)

Plaintiff alleged that the act by Defendant of playing the songs indicated on2the attached List of Songs (hereinafter referred to as "Song 1" and so on
according to the numbers given, and collectively referred to as "Songs") at thefacilities where Defendant teaches hula dance to its members, or where
Defendant performs hula dance, constitutes infringement of the copyrightwhich Plaintiff has over the Songs, thereby demanding against Defendant for
an injunction against the musical performance of the Songs pursuant to Article
112, paragraph (1) of the Copyright Act (No. 1-2).
(3)

Plaintiff

alleged

that

the

act

by

DefendantofperformingtheChoreographies or having Defendant's members perform the Choreographies(as described above in (1)) and the act of playing the Songs (as describedabove in (2)) constitute infringement of Plaintiff's copyright and demanded
against Defendant, on the basis of an act of tort, for payment of 2,503,440 yen
along with delinquency charges accruing therefrom at the annual rate of 5% asprescribed by the Civil Code, from November 1, 2017, which is subsequent tothe act of tort, until the date of payment in full, as part of the damages in theamount of 6,422,464 yen (4,092,120 yen as the amount equivalent to royalties
and 2,330,344 yen as attorney's fees) for the period from November 2014 until
October 2017(4)(No. 1-3).

Plaintiff alleged that, although it had concluded with Defendant a time andmaterial contract under which Plaintiff was to teach hula dance to Defendant or
KHA's members at the workshops to be organized by KHA and the like in thefall of 2014 (hereinafter referred to as "T&M Contract"), Defendant cancelled
the contract at a time that was detrimental to Plaintiff.

Accordingly, Plaintiff

demanded against Defendant, pursuant to Article 656 and the operative part ofArticle 651, paragraph (2) of the Civil Code, payment of damages in theamount of 3,851,910 yen along with delinquency charges accruing therefrom at
an annual rate of 6%, which is the statutory rate of interest for commercial
matters, from March 26, 2015, which is the day following the date of delivery
of a complaint, until the date of payment in full (No. 1-4).
2. Basic facts (matters over which the parties are not in dispute, and other matterswhich are easily acknowledged based on the evidence described later and theentire import of the oral argument)(1) Parties
Plaintiff is a master teacher or instructor of the hula called "kumu hula"and lives in Hawaii.

She choreographs her dances and writes lyrics and music

for hula songs, and teaches hula dance and Tahitian dance and provides songs
3

for these dances.
Defendant is a company engaged in the teaching of hula dance as well asplanning and organizing of events through Hawaiian music, and Defendant
substantively operates the KHA to run hula schools.

KHA teaches hula dance

to its members at the headquarters school and at other schools opened by
KHA's instructors (it can be said that members of KHA are Defendant's
members as well) (Exhibit Ko 2).
Yugen Kaisha Chu-Shikoku Hawaiian Association (hereinafter referred toas "Other Company") is a company which substantively operates Chu-Shikoku
Hawaiian Association (hereinafter referred to as "CSHA") and runs hulaschools, and its relationship with Defendant is very close, as shown by the actof jointly issuing a pocketbook which indicates the Associations' rules andregulations (Exhibit Ko 2).
(2) Contractual relationship between Plaintiff and Defendant
Around 1988, Plaintiff was asked by Defendant's former president(hereinafter referred to as "Defendant's Former President") to provide
instructions on hula dance (Exhibit Ko 39-2, Exhibit Otsu 29), and thereafter,
taught hula dance and Tahitian dance, which Plaintiff choreographed, to KHA's
members.

By the end of 2009, if not earlier, she had concluded withDefendant a consulting agreement under which, at least upon request by
Defendant, in exchange for the professional fee of 1,000 USD (hereinafter
simply referred to as "dollars") per month, she provided instructions and gave
advice on hula dance to Defendant, KHA, or its members (hereinafter referred
to as "Consulting Agreement").
In addition, Plaintiff concluded with Defendant, separately from theConsulting Agreement and for each and every instance, a time and material
contract for personally teaching hula dance and Tahitian dance to KHA's
members at workshops which KHA organized three or four times per year incities in the Kyushu and Chugoku regions, and Plaintiff was paid separately
under such agreements (Exhibits Ko 1, 2-2, 3, 39-2, Exhibit Otsu 28).

Upon

providing these instructions, Plaintiff organized a group in Japan called"KPDA", and KPDA worked in partnership with KHA.
Furthermore, Plaintiff's relationship with CSHA was similar to that which
is described above, and concerning workshops, CSHA held them in cities of
the Chugoku and Shikoku regions at the same time as KHA held workshops inthe cities of the Kyushu region using the same curriculum, and Plaintiff taught
4hula dance and Tahitian dance to CSHA's members as well at workshops
organized by CSHA.
(3) Plaintiff's choreographing of hula dances (Choreographies), writing of Songs,
and performance and playing at KHA
The hula is a traditional Hawaiian dance and is choreographed by sets ofhand motions and steps.

By the end of January 2014, if not earlier, Plaintiff

wrote lyrics and music for the Songs, and also choreographed hula dances andcame up with the Choreographies to accompany the Songs or other songs
written by others, and ever since, Plaintiff taught and gave advice on thechoreographies to KHA's members, who performed the Choreographies at theworkshops where the members can receive Plaintiff's instructions in person, as
well as at events organized by KHA such as Ho'ike (hula festivals), hulaparties, and hula competitions, and Songs were sometimes played during such
events.
Plaintiff has copyright over the Songs and the Choreographies 1 to 4
(hereinafter referred to as "Choreography 1, etc."), and Defendant agrees withthis fact.

On the other hand, the parties are in dispute over whether

Choreographies 6, 11, 13, and 15 to 17 (hereinafter referred to as"Choreography 6, etc.") have copyrightability.
Details of Choreography 6, etc. are as indicated in No. 3 of each of
Annexes 6, 11, 13, and 15 to 17 to the attached List of Choreographies, and the
lyrics for the songs corresponding to the above choreographies are as indicatedin No. 1 of each of Annexes 6, 11, 13, and 15 to 17 to the attached List of
Choreographies (Exhibits Ko 21, 22, 32, 40, 45, 50, the entire import of theoral argument).
(4) Cancellation of 2014 Fall Workshop
In March 2014, Plaintiff concluded a contract (T&M Contract) withDefendant for teaching hula dance (for workshops organized by KHA) and
Tahitian dance (for workshops organized by KPDA) to KHA's members at theworkshops to be organized by KHA and KPDA in cities of the Kyushu region
in the fall of the same year (hereinafter referred to as "Workshops").

The

Workshops were scheduled to be held in a total of five cities between October
2 and 9 of the same year, and in a total of three cities between October 22 and26 of the same year (Exhibit Ko 23-2).
Of the above period, Plaintiff was to teach hula dance (workshops
organized by CSHA) and Tahitian dance (workshops organized by KPDA), as
5

has been the case in the past, to CSHA's members at workshops which CSHA
and KPDA organized in cities of the Chugoku and Shikoku regions between
October 10 and October 21 of the same year (Exhibit Ko 23-2).
However, on September 17 of the same year, Defendant decided to call off
the Workshops and expressed to Plaintiff the intention to cancel the T&M
Contract (hereinafter referred to as "Cancellation").
Meanwhile, Plaintiff taught hula dance and Tahitian dance to CSHA'smembers, as scheduled, at the workshops held between October 10 and 21.
(5) Dissolution of contractual relationship between Plaintiff and Defendant
Around June 2014, Plaintiff expressed its intention, to Defendant, ofdissolving the contractual relationship with Defendant, and Defendant agreed,
and thus the Consulting Agreement ended as of October 31 of the same year.
Upon dissolving the contractual relationship with Defendant, Plaintiff
expressed its intention to prohibit KHA's members from performing hula dance,
which Plaintiff had choreographed, thereafter.

However, Defendant believedthat it was able to use Plaintiff's choreographies even after the dissolution of
the contract, so that even after November 1 of the same year, Defendantsometimes used at least Choreography 6, etc., from among the Choreographies,
at Ho'ike and the like (Exhibits Otsu 61 to 82, 84 to 134; the parties are indispute over whether or not Defendant used Choreography 1, etc. andperformed the Songs on or after the same date).
3. Issues(1) In relation to the claim concerning copyright infringement (No. 1-1 to No. 1-3)
(Issues commonly found in the claims)
A. Copyrightability of Choreography 6, etc. (Issue 1)
B. Whether or not there was assignment of copyright for Choreographies or
grant of right for permanent use (Issue 2)(Issues specific to the claim for injunction)
C. Whether or not there is likelihood of Defendant playing the Songs or
performing the Choreographies or having a third party perform theChoreographies (Issue 3)(Issues specific to the claim for damages)
D. Whether or not there was copyright infringement by Defendant pertaining
to the Songs and Choreography 1, etc. (Issue 4)
E. Whether or not there was intent or negligence on the part of Defendant(Issue 5)6

F. Amount of damages incurred by Plaintiff (Issue 6)(2) In relation to the claim for damages pursuant to the operative part of Article
651, paragraph (2) the Civil Code (No. 1-4)
A. Whether the Cancellation took place at a time that was detrimental toPlaintiff (Issue 7)
B. Whether or not there were unavoidable grounds for the Cancellation (Issue
8)
C. Whether or not Plaintiff suffered damage, and if so, the amount of damages(Issue 9)No. 3Allegations made by the parties regarding the Issues

1. Regarding Issue 1 (Copyrightability of Choreography 6, etc.)(Plaintiff's assertion)
Whether or not Choreography 6, etc. are creative should be determined basedon whether the personality of Plaintiff, who came up with the Choreographies, isexpressed, by considering the choreographies as a whole.
Regarding this point, since Plaintiff's interpretation of the songs corresponding
to Choreography 6, etc. is original, Plaintiff's personality is shown in each of thechoreographies in the Choreography 6, etc.

In fact, Choreography 6, etc. contain,

among the hand motions and steps used therein, those which were independently
created by Plaintiff or those which were created by Plaintiff's previous kumu hulaand which Plaintiff succeeded, and those which are existing hand motions but
which are not normally used as the hand motions to represent the lyrics concerned.
As such, Choreography 6, etc. are different from other choreographies, and thus
they show Plaintiff's personality.
When the foregoing is considered individually for Choreography 6, etc., it is asindicated in the column for "Plaintiff's Allegations" in the attached Table ofComparison of Allegations for Choreography 6, Table of Comparison ofAllegations for Choreography 11, Table of Comparison of Allegations for
Choreography 13, Table of Comparison of Allegations for Choreography 15,
Table of Comparison of Allegations for Choreography 16, and Table ofComparison of Allegations for Choreography 17, and Plaintiff's personality isshown, for example by containing distinctive choreographies which are not foundin other choreographies.
Accordingly, each of Choreography 6, etc. has copyrightability, as a whole,respectively.
(Defendant's assertion)7

(1)Whether or not Choreography 6, etc. are original should be determinedbased on whether or not the choreographies concerned are ordinary andcommonplace.
Regarding this point, choreographies of a hula dance consist of existing
hand motions and existing steps which correspond to the lyrics of the song andwhich are then arranged and combined, so that choreographies naturally
become converged into a restricted range.

Since Choreography 6, etc. are infact as such and lack originality, it cannot be said that Choreography 6, etc.
have copyrightability.
(2)

The subject of protection under the Copyright Act is not the thought or
sentiment per se but the expressions which appear on the outside; thus, even if
the interpretation of the songs which correspond to Choreography 6, etc. isoriginal, it does not immediately confirm copyrightability of Choreography 6,
etc.

Also, in light of the fact that, as pointed out in the above (1), choices arelimited in the choreographies of a hula dance, confirming copyrightability for
Choreography 6, etc. means excessively restricting the freedom of third parties,
so that it is not appropriate.
(3)

When the foregoing is considered individually for each of Choreography 6,
etc., it is as indicated in the column for "Defendant's Allegations" in theattached Table of Comparison of Allegations for Choreography 6, Table ofComparison of Allegations for Choreography 11, Table of Comparison ofAllegations for Choreography 13, Table of Comparison of Allegations for
Choreography 15, Table of Comparison of Allegations for Choreography 16,
and Table of Comparison of Allegations for Choreography 17, and thechoreographies of the Choreography 6, etc. lack independence and originality
because the same choreographies are found in other choreographies, or they
are movements which reflect existing hand motions.
Accordingly, it cannot be said that Choreography 6,

etc. havecopyrightability.
2. Regarding Issue 2 (Whether or not there was assignment of copyright for
Choreographies or grant of right for permanent use)
(Defendant's assertion)
With regards to the copyright for the Choreographies, Defendant was assigned
the same, or was granted the right to permanently use the same, in exchange forpayment of money in a lump sum to Plaintiff.
(Plaintiff's assertion)
8

Denied.
3. Regarding Issue 3 (Whether or not there is likelihood of Defendant playing
the Songs or performing the Choreographies or having a third party performthe Choreographies)(Plaintiff's assertion)
Since Defendant played the Songs and performed the Choreographies evenafter November 2014, there is likelihood of Defendant playing the Songs andperforming the Choreographies in the future as well.
(Defendant's assertion)
With regards to the Songs and Choreography 1, etc., Defendant acknowledges
that Plaintiff has copyright over them, and since November 2014, Defendant has
not played the Songs or performed Choreography 1, etc. upon teaching hula dance
to KHA's members, and has no plan of playing or performing the same in the
future.

Accordingly, there is no likelihood of Defendant playing the Songs or

performing Choreography 1, etc.
4. Regarding Issue 4 (Whether or not Defendant infringed copyright pertaining
to the Songs and Choreography 1, etc.)(Plaintiff's assertion)
Even after November 2014, Defendant has played the Songs and performed theSongs and Choreography 1, etc.
(Defendant's assertion)
Denied.
5. Regarding Issue 5 (Whether or not there was intent or negligence on the partof Defendant)(Plaintiff's assertion)
Given that Defendant performed the Choreographies while being aware that it
may be pointed out by Plaintiff that performance of the same falls under copyright
infringement, it is clear that there is at least negligence on the part of Defendant
for the act of infringement of copyright for the Choreographies.
(Defendant's assertion)
Since Defendant was not clearly aware as to Choreography 6, etc. having
copyrightability, it cannot be said that there was negligence on the part ofDefendant for the act of infringement of copyright for Choreography 6, etc.
6. Regarding Issue 6 (Whether or not Plaintiff suffered damage, and if so, theamount of damages)(Plaintiff's assertion)9

(1) Amount equivalent to royalties
A.

In the world of hula, it is not normally the case that the kumu hula, whochoreographed a dance, would grant license for the choreographies
concerned without the same kumu hula providing advice or instructions.
By concluding the Consulting Agreement with Defendant, Plaintiff had
given the blanket permission which allowed KHA's members to perform
Plaintiff's choreographies at Ho'ike (hula festivals), hula parties, and hulacompetitions, in addition to performing the same at schools for practice toparticipate in these events.

It is for this reason that Plaintiff sometimes

provided KHA's members with advice and instructions necessary for
performing the Choreographies.

Accordingly, the professional fee under

the Consulting Agreement includes the purpose of royalties for Plaintiff's
choreographies.
Since Plaintiff had given most of the advice and instructions to KHA's
members during workshops, Plaintiff received professional fees for advice
and instructions under time and materials contracts which Plaintiff
concluded with Defendant separately from the Consulting Agreement.

Inthat case, it should be considered that the entire amount of consideration
under the Consulting Agreement (1,000 dollars per month) substantively
constitutes the royalties for Plaintiff's choreographies, and that theconsideration for the advice and instructions given outside the workshops
was included therein.
Accordingly,theamountequivalent

to

the

royalties

for

the

Choreographies and the Songs is 36,000 dollars (when converted into
Japanese yen, 4,092,120 yen) for the period of copyright infringement (36months: From November 1, 2014 until October 31, 2017).
B.

Given that Plaintiff had kept the amount of royalties to 1,000 dollars
per month irrespective of the number of songs and the number of
performances, it is not reasonable to consider, based on the reason that theChoreographies constitute a part of the choreographies created by Plaintiff
and performed by Defendant, that the amount equivalent to the royalties for
the Choreographies and the Songs should remain a part of the 1,000 dollars.

(2) Amount equivalent to attorney's fees
The amount equivalent to attorney's fees for the present suit shall not be
below 10% of 23,303,440 yen, which is a total of 20,800,000 yen (13 ×1,600,000 yen), the jurisdictional amount in the claim for injunction pertaining10

to the Choreographies (choreographies for ten songs) and the Songs (threesongs), and 2,503,440 yen, the amount of damages on the basis of an act of tort
(copyright infringement).

Accordingly, the amount equivalent to attorney's

fees for the present suit is 2,330,344 yen.
(Defendant's assertion)(1) Amount equivalent to royalties
A.

The Consulting Agreement only sets forth that Plaintiff shall, if
requested by Defendant, who teaches hula dance to KHA's members,
provide advice to Defendant, like under a so-called advisory contract,and granting of license, as alleged by Plaintiff, is not included therein.
As such, the professional fees paid under the agreement do not include
the purpose of royalties for the choreographies created by Plaintiff.

In

addition, Plaintiff has not reached any agreement with Defendantconcerning royalties for the choreographies created by Plaintiff.

As aresult, Plaintiff had given consent to Defendant as to using Plaintiff's
choreographies free of charge.
In light of such example of licensing between Plaintiff andDefendant concerning royalties for Plaintiff's choreographies, it isreasonable to consider that the amount of royalties for the
Choreographies and the Songs shall be zero yen, and if not zero yen, aprice as close as possible to zero yen.
B.

Since the description of entrustment under the Consulting
Agreement includes that Plaintiff shall provide advice to Defendant as
may be requested by Defendant who teaches hula dance to KHA's
members, the professional fees under the Consulting Agreement include
the purpose as to the giving of advice above, and thus it is impossiblethat the entire amount of 1,000 dollars per month is intended as
royalties for Plaintiff's choreographies.

(2) Amount equivalent to attorney's fee
Denied or to be disputed.

The Songs are not played, and thecorresponding choreographies, namely, Choreographies 1 to 3 andChoreography 4, are not performed, either.

As such, the claim for

injunction pertaining to these songs and choreographies is not legitimate,so that the demand for the amount equivalent to attorney's fees pertaining
to the claim for injunction is not legitimate.
7. Regarding Issue 7 (Whether the Cancellation took place at a time that was
11detrimental to Plaintiff)(Plaintiff's assertion)
Since the Cancellation took place immediately before the Workshops were to
be held, Plaintiff could not engage in an alternative work for the time when theWorkshops were scheduled, and was not able to earn income from such work.
Accordingly, the Cancellation was implemented at a time that was detrimental toPlaintiff.
(Defendant's assertion)
To be disputed.
8. Regarding Issue 8 (Whether or not there were unavoidable grounds for theCancellation)(Defendant's assertion)
Since the number of applicants for the Workshops (the deadline for application
was September 10, 2014) was very small in light of the number of participants atworkshops held in the fall of 2012 and 2013, it was estimated that holding theWorkshops would be money-losing.

Furthermore, since August 2014, there was

the situation of instructors and the students taught by such instructors leaving
KHA one after another.
This resulted from the circumstances in which, in the same month, Plaintiff
prepared, and distributed to KHA's instructors, a document containing insults andwild accusations against Defendant as well as information which caused themisunderstanding that performance of the choreographies taught by Plaintiff will
no longer be allowed (Exhibit Ko 13), and in which Plaintiff colluded with aperson who left Defendant and who was about to launch West Japan Hawaiian
Association, which was to be a competitor of KHA, to take members away from
KHA.
Under these circumstances, holding the Workshops would have been moneylosing, and furthermore, it was predicted that, because of Plaintiff's insults andwild accusations against Defendant at the Workshops, even more members would
leave KHA.

As such, it was unavoidable for Defendant, which is a profit-making

company, to decide to cancel the T&M Contract on September 16 of the same year,
and on the following day, to express to Defendant the intention to cancel the T&M
Contract.
(Plaintiff's assertion)
First of all, it is difficult to trust Defendant's assertion as to holding theWorkshops being estimated to be money-losing and making this the main reason
12

for cancellation of the T&M Contract.
Even if this point is put aside, the reason for which Plaintiff created the
document (Exhibit Ko 13), which Defendant pointed out, is that Plaintiff wanted
to explain to KHA's top instructors, whom Plaintiff had taught over many years,
the background to dissolving the relationship with Defendant and Plaintiff's
personal feelings about the matter, and not to insult or make wild accusations
against Defendant or to solicit KHA's members to the West Japan Hawaiian
Association.

Furthermore, since it is the convention in the world of hula that aperson who leaves the guidance of kumu hula will no longer be able to perform thechoreographies taught by the kumu hula, it is justifiable that Plaintiff prohibits theperformance of the choreographies which Plaintiff personally taught to KHA's
members.
Furthermore, in light of the fact that as of June of the same year, Plaintiff had
informed Defendant of the intention to prohibit the performance of thechoreographies which Plaintiff taught to KHA's members, the fact that Plaintiff
informed KHA's members of such intention per se was something which
Defendant, too, would have naturally predicted.

If Plaintiff were to dissolve its

relationship with Defendant, Defendant could easily predict that not only KHA's
members, who were attracted to the opportunity of being taught by Plaintiff,would refrain from participating in the Workshops, but also that KHA's members
may even leave KHA.

Nevertheless, Defendant decided to dissolve therelationship with Plaintiff and went on to hold the Workshops.
Accordingly, the situation in which holding the Workshops would be moneylosing and in which KHA's members left KHA one after another was brought
about by Defendant on its own, and was naturally predictable, yet Defendantcalled off the Workshops immediately before the scheduled time, and this act by
Defendant of passing on to Plaintiff the risk of damages arising from thecancellation of Workshops shall not be permitted.
9. Regarding Issue 9 (Whether or not Plaintiff suffered damage, and if so, theamount of damages)(Plaintiff's assertion)
If the cancellation of T&A Contract did not take place at the time which was
detrimental to Plaintiff, by being immediately before the Workshops were held,
and when Plaintiff was preparing for the Workshops, [i] Plaintiff would have beenable to attend other events during the period of Workshops (a total of 16 days from
September 30, 2014 until October 9 of the same year, and from October 22 until
13

October 27 of the same year), and as a result, would have been able to earn an
income of at least 5,922,240 yen (eight times the 740,280 yen which she earned
from attending events for two days), and [ii] Plaintiff would have been able tospend the hours during which she prepared for Workshops (45 days) as the hours
to attend other events, and as a result, would have been able to earn an income ofat least 16,656,300 yen (22.5 times the income of 740,280 yen which she earned
from attending events for two days).
Accordingly, the amount of damages incurred by Plaintiff due to thecancellation by Defendant of the T&M Contract shall not be below 31,750 dollars(when converted into Japanese yen, 3,851,910 yen), which is the amount ofprofessional fees under the T&M Contract as agreed with Defendant.
(Defendant's assertion)
During the period of Workshops, from October 10, 2014 until October 21 of
the same year, Plaintiff taught hula dance and Tahitian dance, which Plaintiff
choreographed, to CSHA's members at workshops that were held in a total of four
cities.

Concerning the damage of [ii] as asserted by Plaintiff, the same period as

the period spent for the Workshops was necessary for the preparation, in any case,and as for the damage of [i], Plaintiff was not able to attend other events before
and after the above period.
Accordingly, it cannot be acknowledged that Plaintiff suffered damage due tothe cancellation of T&A Contract by Defendant (it should be noted that theamount of professional fees scheduled to be paid to Plaintiff under the T&M
Contract is 28,750 dollars).
No. 4

Judgment of this court

1. Regarding Issue 1 (Copyrightability of Choreography 6, etc.)(1) Copyrightability of a hula danceA.
Article 10, paragraph (1), item (iii) of the Copyright Act lists "works ofchoreography" as examples of "works".

A work of choreography is suchthat the forms of a person's physical movements are represented inchoreographies.

Regarding this point, the "right to give a stage

performance of the work with the purpose of having it seen directly by the
public" (stage performance right) is stipulated as a subdivided right of
copyright (Article 22 of the same Act).
B.

The Hawaiian folk dance is called "hula" or "hula dance".

There aretraditional hula and modern hula, and while traditional hula consists ofchant (oli) and dance (hula), which have been carefully preserved since14

ancient times and succeeded by respective schools throughout the history of
the Hawaiian people, the modern hula first came about in the nineteenth
century under the influence of western civilization and was created byincorporating melodies, and developed jointly with so-called Hawaiian
music.

What is at issue in the present case concerns modern hula, and inmodern hula, kumu hula (kumu), or the master teacher, personally createschoreographies for a song and teaches them at his or her own school(hālau) (the above is from Exhibit Ko 14 [Statement by Kumu Hula]).
The hula dance, which is Hawaiian folk dance, is characterized by theuse of hand motions to represent the meanings of songs (Exhibit Ko 14).
An introductory book on hula dance describes the hula as using bodylanguage to represent lyrics (Exhibit Otsu 3), and describes that the basics
of hula are such that the dancer uses hand motions to represent themeanings of lyrics while taking steps to keep rhythm and create a flow
(Exhibit Otsu 5).

While a hula dance is choreographed by use of handmotions and steps, certain movements corresponding to specific words arepredetermined for hand motions (a word may be represented by two or
more movements); as such, an introductory book describes hand
movements by stating that in hula, each hand movement has its own
meaning (Exhibit Otsu 3), or that hand motions are sort of like sign
language in that the dancer uses his/her hands, at the center, and the rest of
his/her upper body to represent the meanings of lyrics (Exhibit Otsu 5).
On the other hand, steps are based on typical patterns (introductory books
according to Exhibits Otsu 3 to 6 introduce a total of 16 patterns), and an
introductory book describes steps as such that once memorized, they can be
combined freely to create one's own styles (Exhibit Otsu 3).
C.

Based on these characteristics of hula, if choreographies of a certain
song merely include, in places having corresponding lyrics, hand motions
which can be assumed from the lyrics concerned, the choreographies are
such that predetermined hand motions were simply applied to the lyrics, sothat the choreographies in these places cannot be acknowledged as showing
the author's personality.
Also, in light of the fact that hand motions of a hula dance represent
lyrics, in the cases where predetermined hand motions or routine handmotions are not used in the choreographies of a certain part of lyrics, if the
movement is the same as the one used in other choreographies for the same15

lyrics of the same song or of other songs, it means that there exists an
example in which the same choreographies are used as representations of
the lyrics concerned, so that taking the same movement to represent the
lyrics concerned cannot be acknowledged as showing the author's
personality.
Furthermore, if choreographies of a certain lyrics part are different
from predetermined hand motions or other similar examples, if thedifference concerns only a small part or an unnoticeable part in movement,
its effect on the impression of the dance, as seen by the audience, is small,and the borderline is unclear when compared with other choreographies, sothat it is not reasonable to acknowledge that such difference shows theauthor's personality.

Also, if the difference between the predetermined

hand motions and other similar examples are commonplace changes, forexample the movement being made by a single hand or by both hands, orby either the right or the left hand, such difference cannot be acknowledged
as showing the author's personality.
Naturally, if two or more patterns of hand motions and similar
movements correspond to a single lyric, a choice is made from among thepatterns to create a choreography, and as a result of such choices being
made for each lyrics part, the combination of hand motions in the entire
dance may become unlike any other example.

It is believed that an authorof a hula dance takes into consideration the dancing effect, including theunity in movements throughout the dance, lively physical movements, andelegance, as he/she devises the combination of movements.

However,even in this case, if the hand motions are identical to the existing andlimited hand motions, or if there is no significant difference, and if, in thatsense, it can be evaluated that choices were made from among the limited
options, such combination of choices cannot be acknowledged as showing
the author's personality, and as for the arrangement, it is based on the orderof lyrics, so that likewise, it cannot be acknowledged as showing theauthor's personality.
D.

On the other hand, if, contrary to what is described above, achoreography corresponding to a lyric is not a predetermined hand motionthat can be assumed from the lyric or a hand motion that is found in othersimilar examples, or is not significantly different from either of theforegoing, it can be said that such movement is a movement of
16

choreography for the lyrics part concerned and is original to thechoreography or is a result of a significant arrangement to an existing
movement, so that it is reasonable to acknowledge that the author's
personality is shown.
Naturally, even such movement may be commonplace if it is seen as amovement of choreography in a hula dance in general, and furthermore, if
it is seen as a movement of choreography in a dance in general.
Defendant asserts that in such case, said movement is commonplace.
However, given that the hand motions of a hula dance represent lyrics, if,in spite of the movement per se being commonplace, the use of the
movement to choreograph the lyrics concerned is not found in otherexamples, it is reasonable to consider that the author's personality is shown
as a representation of the lyrics concerned, and even if this interpretation isadopted, the interpretation is not such that the author's personality is
acknowledged for movement per se and apart from the specific lyrics of a
specific song, so that it is believed that the scope within which the showingof an author's personality is acknowledged will not extend to an
unreasonable scope.
E.

Incidentally, given that hand motions of a hula dance represent lyrics,
in order to create choreographies for lyrics, interpretation of the meaningsof the lyrics is a precondition.

Normally, it is assumed that lyrics areinterpreted based on the ordinary meanings of words, but depending on theauthor, choreographies may be created based on an original interpretationof lyrics apart from the ordinary meanings of words.

It seems that

Plaintiff's intent is to assert that, in such case, the author's personality
should be acknowledged for the originality of the interpretation per se.
However, since the Copyright Act protects the creativity of specificexpressions, even if the interpretation is original, if the resulting specificchoreographies are as described in the above C, it still cannot be
acknowledged that the author's personality is shown in the choreographies.
On the other hand, Defendant asserts that even in the case whereinterpretation of lyrics is original and thus choreographies become different
from others, if, based on such interpretation, it is commonplace to use suchchoreographies, granting protection under the Copyright Act for thechoreographies is nothing other than to ultimately protect the interpretationof lyrics of a song, and shall not be permitted.
17

However, in the casewhere interpretation of lyrics is original, and if this is the reason due towhich the resulting choreographies differ from others, such motives that led
to the choreographies do not exist for other authors, so that it is reasonable
to acknowledge that the author's personality is shown in the giving of said
movements to said lyrics parts.
acknowledged

as

the

Even based on this interpretation, what is

showingof personality concerns

only thechoreographies, which are specific representations, and it does not prevent
other choreographies from being created under the same interpretation, sothat it does not lead to dominance over the interpretation per se.
Meanwhile, if there are cases in which choreographies are created basedon the same interpretation, but in which interpretation of lyrics may deviate
from the ordinary meanings of the words, it means that other authors, too,
were presented with the motives that led to creating choreographies under
the same interpretation, so that if it is commonplace to use saidchoreographies under said interpretation, it cannot be acknowledged thatthe author's personality is shown in the giving of said movements to said
lyrics parts.
F.

While hand motions are as described above, typical patterns exist forsteps as mentioned above, and an introductory book also indicates that oncethe steps are memorized, they can be freely combined to create one's own
style.

As such, steps do not represent lyrics, and it is believed that steps

are selected and combined, as appropriate, in consideration of the theme
and the dancing effect, and the choices available are not very variant.

Inthat case, it should be said that steps merely consist of basicall ycommonplace choices and the combination thereof, and it cannot be
acknowledged that the author's personality is shown therein.

However, if

a step is new and notably different from existing steps, it should be
acknowledged that the author's personality is shown in the step itself (if theauthor's personality is acknowledged simply on the basis that a step isdifferent from existing steps in some respect, steps with respect to which
personality is acknowledged on the basis of minor differences would
appear and may hinder the performance of hula dance, so that in order toacknowledge the author's personality in the steps per se, it is reasonable tointerpret that such steps must be notably different from existing steps).
Also, if it is acknowledged that hand motions and steps are combined forthe purpose of notably expanding the representations of lyrics or of notably
18increasing the dancing effect, it is reasonable to regard the hand motions
and steps as a set and acknowledge that the author's personality is shown inthe choreographies concerned.
G.

Even if, as described above, the author's personality is shown in thechoreographies of a specific lyrics part, the length of the lyrics part lasts
only for several seconds or so at most, and such a brief moment of
movement does not constitute a dance.

Accordingly, as asserted by

Defendant, copyrightability of dance cannot be acknowledged individuallyfor a specific lyrics part.

However, a hula dance, as choreographing of asong, becomes a hula dance as a set of parts, some of which show theauthor's

personality

acknowledged as such.

asdescribed

above

while

otherscannotbe

Accordingly, if a set of movements are considered

as a whole, such movements make up a dance, and if, among the
movements, the parts in which the author's personality is shown exist to acertain degree, it is reasonable to acknowledge copyrightability of dance
for the set of parts as a whole.

In the present case, since Plaintiff assertsthat the choreography of a song as a whole has copyrightability, theforegoing should be considered for the whole choreography.
In addition, based on this perspective, in the case where it isacknowledged that a hula dance has copyrightability, in order toacknowledge that the copyright is infringed, it is needless to say that theperformance, as a whole, which is alleged to be the subject of infringement,
must contain the choreographies corresponding to the specific lyrics partsfor which the author's personality is acknowledged, but this is not sufficient,and it is reasonable to interpret that the performance as a whole must be
felt as having the characteristics of a dance as a series of movements of thehula dance.
H.

Based on the thinking described above, copyrightability of each of
Choreography 6, etc. shall be considered below (since, as described above,
the author's personality basically cannot be acknowledged for steps,
reference to steps shall be made only when special consideration isrequired).

(2) Consideration of Choreographies 6, 11, 13, 15 to 17
A. Choreography 6 (Song: E Pili Mai)
(A) 'Auhea wale ana 'oea.

"'Auhea" means "where", and "'oe" means "you" (Exhibit Otsu
1954), and Plaintiff gives the translation, "where are you?"b.

Choreography 6 consists of the following movements which canbe largely divided into the following two parts, namely, [i] the rightarm is held up to the forehead with the palm down, and the left arm
is raised so as to create a space in the armpit, and is bent at the
elbow, and the left arm is placed horizontally in front of the chest,
and the body, which faces forward to the left, is moved so as to face
forward to the right, and in doing so, the right foot and the left footalternately take two steps each to the right, and [ii] next, the left arm
is extended, and the right elbow is bent slightly, and both hands are
lined up at chest height with palms facing the same direction (turned
facing front and slightly downward), and the body, which faces
forward to the right, is moved so as to face forward to the left.
Regarding these movements, Plaintiff asserts that the movementof moving both arms to the left, along with the direction of the body,
represents the meaning of "where are you?"First, when the movement of [i] is considered, the hand motion
for "'Auhea" (where) is such that one hand is held up to the forehead(Exhibit Otsu 26), and likewise, the choreography indicated in
Exhibit Otsu 12 is such that one hand is held up to the forehead.
Naturally, whereas in the movement of [i], the other hand which is
not held up to the forehead is bent and placed in front of the chest,
the hand is extended according to Exhibits Otsu 12 and 26, but thechange of bending two arms at a place where only one arm is bent iscommonplace, and this cannot be considered a significant difference.
Next, when the movement of [ii] is considered, the hand motion
for "'oe" (you) is such that a fingertip or the palm of one hand isused to point to the person in front of the dancer (Exhibits Otsu 3, 4).
Accordingly, the movement of [ii] involves simultaneously moving
the direction to which the body faces, and thus the movement,
including the movement of the body, is the same as thechoreography indicated in the lower left corner and lower rightcorner of Exhibit Ko 25.

c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(B) Ku'u lei o ka pō
20

a.

"Ku'u" means "my", "lei" means "wreath" (worn on the head or
aroundtheneck)",afigurative

expression

for"belovedchild/wife/husband/lover/younger brother/younger sister", and "pō"means "night" (Exhibits Otsu 33 and 54).

Plaintiff gives the liberaltranslation, "my loved one at night".
b.

Choreography 6 consists of the following movements which canbe largely divided into the following two parts, namely, [i] the rightarm is raised slightly so as to create a space in the armpit, and isbent at the elbow, and the right hand is placed horizontally in frontof the chest with the palm down, the left hand is raised so as tocreate a space in the armpit, with the elbow bent and the palm kept
turned down, and is moved from the front, over the head, passing
behind the head, and to the front of the left chest, and in doing so,
the body moves as the right foot and the left foot alternately taketwo steps each to the right, and [ii] next, both arms are bent at the
elbow, with the palms turned inward, and the arms are slightly
lowered once in a bouncy manner in front of the chest, and then thepalms are turned up, and simultaneously, the arms are slowly
extended and held up to a position above the head.
First, with regards to the movement of [i], Plaintiff asserts thatin this song, "lei" has the two meanings of "lei" as in a necklace and"loved one", and that the movement of the dancer putting on a lei(necklace) represents the meaning of "the lei I put on me is a symbolof you, my lover whom I truly care for".

However, the movementof one hand moving from the front, over the head, passing the backof the head, and to in front of the left chest is the hand motion
meaning "lei" (Exhibit Otsu 4), and these movements, along withother parts, are the same as the choreographies indicated in thelower right corner of Exhibit Ko 25.
Next, with regards to the movement of [ii], Plaintiff asserts thatthe movement of holding up both arms represents the dark sky, or
heaven, and that this movement represents that the lover is in thedarkness of night.

However, such movement is the same as thechoreography indicated in the lower right corner of Exhibit Ko 25.
Meanwhile, Plaintiff emphasizes the point that the palms are turned
inward, but this point, as well as the rest of the movement, is the21same as in the example indicated in the lower right corner of Exhibit
Ko 25, so that Plaintiff's assertion cannot be accepted.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(C) Pō anu ho 'okahi no aua.

"Pō" means "night", "anu" means "cold", "ho 'okahi" means"alone", and "au" means "I" (Exhibits Otsu 54, 3), and Plaintiff
gives the translation, "the night is cold and I am alone".

b.

Choreography 6 consists of the following movements which canbe largely divided into the following two parts, namely, [i] withboth palms down, the right arm is bent slightly at the elbow, andboth arms are lowered to the chest and crossed in front of the chest,
parallel to the body, with the palms turned inward, and these seriesof movements are performed while the feet make a 270-degree turnto the right, and [ii] next, while the dancer is still facing diagonally
backward to the left from the turn, the right foot and the left footalternately take two steps each diagonally backward to the left as thearms are lowered until they are fully extended.
First, with regards to the movement of [i], Plaintiff asserts thatthe movement in which the body rotates clockwise while both arms
are lowered and are crossed in front of the chest represents that thedark night has continued and that it is getting dark and cold.
Regarding this point, while other choreographies of Exhibit Ko 25
and Exhibit Otsu 12 show the same movement as Choreography 6with regards to the hand motion, no turn is made while doing so.

Aturn is a type of normal steps (as in the spin turn in Exhibit Otsu 5),
but a turn is not normally assumable from static lyrics such as"night" and "cold", and since the turn which is made while the arms
are lowered enhances the liveliness of the entire body, it should besaid that the difference is made more significant.

Meanwhile,

Defendant asserts that the hand movement is an existing handmotion and that the foot movement is an existing step, and amovement resulting from the combination thereof is commonplace,but as described above, this assertion cannot be accepted.
Next, regarding the movement of [ii], Plaintiff asserts that the
movement of walking alone in the direction that is opposite to the22audience (the back) represents that "he" is alone, and that the
movement of lowering the arms represents that "he" is spending thenight alone and cold without anyone to hold "him".

Since thismovement is not assumable from the corresponding lyrics, andfurthermore, since there is no example in which the same movement
is used, the movement is acknowledged to be original toChoreography 6.

Meanwhile, Defendant points out that such

movement is commonplace in all kinds of dances, but as describedabove in (1) D, such assertion by Defendant cannot be accepted.
c.

Accordingly, it can be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(D) Sweetheart mine E pili maia.

"Sweetheart mine" are English words meaning "my sweetheart",and "pili" means "together" or "close relationship", and "mai" means"please come this way" (Exhibits Otsu 33, 54), and Plaintiff gives
the translation, "my sweetheart, come with me".

b.

Choreography 6 consists of the following movements which canbe largely divided into the following two parts, namely, [i] botharms are bent inward at the elbow, and both hands, with open palms,
are rotated once in front of the chest, and while the left arm is raisedslightly so as to create a space in the armpit and is bent at the elbow,
the left hand is placed in front of the chest with the palm up, and theright hand, which is placed in front of the left chest with the palm up,
is extended diagonally forward to the right, and these series of
movements are performed while the feet make a 135-degree turn tothe right, and [ii] the extended right hand is pulled back slightly, andthe left hand is slightly extended to the outer side of the body.
Pointer fingers of both hands are raised, and both arms are extended
to the outer side of the body, and simultaneously, the arms arebrought to the front of the body and both hands are joined together
in front of the chest.
First, with regards to the movement of [i], Plaintiff asserts thatthe dancer's walking back to the direction of the audience (front)
from the state of facing away from the audience, and extending theright hand, with the palm up, from the position in front of the chestmeans that "he" is giving his love to "his" lover, and that "his"23never-ending love for the lover will last forever, but such movement
is the same as the choreography of Exhibit Otsu 12.
Next, regarding the movement of [ii], Plaintiff asserts that byextending both arms horizontally in both directions and graduallybringing them to the front of the body, and by joining the hands infront of the body, the movement shows that their love is so strongthat it can keep them together, but such movement is a hand motionthat corresponds to "e pili", of raising pointer fingers of both hands
and joining the hands in front of the chest (Exhibit Otsu 26), and the
movement is found in some examples to represent the same lyric of"e pili" in different songs (Exhibits Otsu 21 to 23).
Plaintiff

asserts

that

since

there

is

no

Meanwhile,similarexample,Choreography 6 has originality, but as described above, theassertion cannot be accepted.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(E) Inā 'o 'oe a'o aua.

"Inā" means "if ... were", "'oe" means "you", and "au" means "I"(Exhibits Otsu 54, 3), and Plaintiff gives the translation, "if you
were with me".

b.

Choreography 6 consists of the following movements which canbe largely divided into the following three parts, namely, [i] the left
hand is lowered and is placed parallel to the body, and the righthand, as the palm is turned up, is extended forth from the state of
the elbow being slightly bent diagonally forward to the right, and[ii] next, the left arm is extended diagonally forward to the left, withthe palm down, and the right arm is raised so as to create a space inthe armpit, and is bent lightly, with the palm down, pointing
diagonally to the left, and [iii] next, the extended left arm is bent
and pulled back to the front of the chest, and is placed in front of thechest parallel to the body, with the right palm and the left palm
turned inward and one palm being placed over the other.
First, regarding the movements of [i] and [ii], Plaintiff assertsthat the movements represent how "he" is very strongly looking
forward to be with "you".

However, such movement is made by

the hand motion that corresponds to "'oe" (you), of using the entire
24

palm to point to the other person in front (Exhibit Otsu 4),
performed once by each hand, respectively.

The example shown in

the lower left corner of Exhibit Ko 25 shows the same hand motion
being performed two times by the right hand and once by the left
hand, and the example shown in the lower right corner shows thesame hand motion being performed only once by the right hand, sothat it cannot be said that performing the same hand motion once byeach of the right and the left hand, respectively, has a significant
difference.
Next, regarding the movement of [iii], Plaintiff asserts that the
movement represents"he" and "his" lover being together.

However, such movement is a hand motion that corresponds to "au"(I), of placing the palms in front of the chest and facing them in thedancer's direction (Exhibit Otsu 3), and this choreography is
performed in the examples in the lower right corner and lower left
corner of Exhibit Ko 25 as well.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(F) 'Ike i ke ahi o Makanaa.

"Ike" means "to see", "ahi" means "fire", and "Makana" is ageographical name (Exhibit Otsu 54, the entire import of the oral
argument), and Plaintiff gives the translation, "we will know the fireof Makana".

b.

Choreography 6 consists of the following movements which canbe largely divided into the following three parts, namely, [i] theright hand is placed by the right eye, with the palm down, and isturned diagonally upward to the left together with the face, and theleft hand is extended straight, with the palm down, and is turned
diagonally upward to the left, and [ii] later, the right hand is placedaround the elbow area of the extended left hand, and the left arm,
which is kept extended, with the wrist bent downward, is brought
down diagonally downward to the left, rather swiftly, from theposition of diagonally upward to the left, and simultaneously as theleft arm is brought down, the dancer lowers his/her hip and crouches
down slightly, and [iii] next, the dancer, while maintaining his/her
low posture, slightly bends both hands and lines them up in front of25

the chest, and makes a wavy motion once with both palms, and, as
the dancer raises his/her hip and stretches upward, he/she brings theleft arm, which is extended, slightly diagonally downward to theside of the body, and brings the right arm, which is extended,slightly diagonally upward to the side of the body, and once again
he/she makes a wavy motion with both palms.
First, with regards to the movement of [i], Plaintiff asserts that
this movement is a representation of the anticipation that something
will happen, or of the waiting for something that is about to happen,
so that it is an expression of how "he" is truly looking forward towhat is to happen.

However, this movement is a hand motion that

corresponds to "ike" (to see), of holding both hands to the eyes andturning the palm of one hand and the face outward while extending
the other hand (Exhibit Otsu 4), and the same movement is also
found in the lower left corner of Exhibit Ko 25, and the same
movement, with the right hand and left hand used alternately, isfound in the lower right corner of Exhibit Ko 25 as well.
Next, with regards to the movements of [ii] and [iii], Plaintiff
asserts that grabbing the torch, which is falling, represents the
symbol of the burning desire, in love, to be together.

However,regarding the movement of [ii], since in the example in the lower
right corner of Exhibit Ko 25, both hands are raised above and arelowered as the dancer crouches down, it can be said that there is asimilar example for the movement of up and down (Plaintiff assertsthat the interpretation of grabbing the falling torch is original, butsince a similar example exists as a specific representation,
originality of choreography cannot be acknowledged based only on
the originality of interpretation).

As for the movement of [iii], it

has the elements of the hand motion for "place", of extending one
hand forward and extending the other hand upward (Exhibit Otsu 5).
However, when the movements of [i] to [iii] are observed as aseries of movements, Choreography 6 is a lively choreography
involving the entire body, as is not seen in other examples, by the
combination of the movement of [i] in which the dancer makes a big
motion of extending upward, and of the movement of [ii] in which
the dancer makes a big motion of crouching down, and of the26

movement of [iii] in which the dancer makes a big motion once
again of extending upward.

As for the individual movements

themselves, the movement of [i] is unlike any other example, in that
one hand is extended high upward until almost right above the body,as the body stretches out, and the movement of [ii] is unlike theexample in the lower right corner of Exhibit Ko 25 in the way thehands are crossed when they are brought down, and the movementof [iii] is not exactly the same as the hand motion for "place" in thatthe body stretches upward, and as a series of movements, there is no
example of the same combination.
c.

In light of the foregoing, it is reasonable to acknowledge that thechoreographies corresponding to the lyrics here show Plaintiff's
personality.

(G) He makana ia na ke alohaa.

"Makana" (a noun) means "gift", and "aloha" means "love"(Exhibits Otsu 33, 54), and Plaintiff gives the liberal translation,"that will be a gift of love".

b.

Choreography 6 consists of the following movements which canbe largely divided into the following two parts, namely, [i] the rightarm is extended straight, diagonally upward to the right, with theopen palm facing front, and similarly with the open palm facing
front, the left arm is placed alongside the right arm, by slightly
bending the left arm, and by extending the left arm at the same time
as when the right arm is bent, the heights of the arms are reversed,and [ii] next, the dancer lowers his/her hip and takes a slightly
crouching posture while slowly bending both arms simultaneously,
and crossing the wrists in front of the chest, with the palms turned
inward.
First, with regards to the movement of [i], Plaintiff asserts thatthe prior movement, which represents the previously mentioned
mountain of Makana, shifts to the movement representing "makana",
as in "gift".

However, the movement here is similar to the handmotion for "mountain" (Exhibit Otsu 4), of alternately raising both
hands, with each hand raised to a different height.

However, there

is no example in which the hand motion for "mountain" is used here
to perform the same movement as the movement of [i] on the basis
27that "makana" (gift) and the immediately preceding "Makana"(geographical

name)

are

homonyms.

Furthermore,thechoreographies indicated in the lower right corner and lower left
corner of Exhibit Ko 25 and in Exhibit Otsu 12 are such that both
hands are placed in front of the chest and then spread to the front.
The movement of these examples is obedient to the lyric of"manaka" (gift), and use of the hand motion for "mountain" is notnormally assumable from the content of the lyrics.

Meanwhile,

Defendant points out that the movement of Choreography 6 iscommonplace in all kinds of dances, but as described in the above(1) D, such assertion by Defendant cannot be accepted.
Next, with regards to the movement of [ii], Plaintiff asserts thatthe "makana", which means "gift", shifts to the movement ofcrossing hands in front of the chest, which means "love", so that the
movement represents that "he" is sending a gift of love.

However,such movement is a hand motion for "aloha" (love), of crossing thehands in front of the chest, with the right hand on top and the left
hand on bottom, from the state in which both hands are spread or
thrust forward, (Exhibit Otsu 4), and it is the same as thechoreography indicated in the lower left corner of Exhibit Ko 25.
c.

Accordingly, of the choreographies corresponding to the lyrics
here, while the movement of [i] can be evaluated as original toChoreography 6 and as showing Plaintiff's personality, themovement of [ii] cannot be evaluated as showing Plaintiff's
personality.

(H) No nā kau a kau 'o 'oe a 'o aua.

"No nā kau a kau" means "to be together forever", and "'oe"means "you", and "au" means "I" (Exhibit Otsu 54, the entire importof the oral argument), and Plaintiff gives the translation, "together
forever, you and I".

b.

Choreography 6 consists of the following movements which canbe largely divided into the following two parts, namely, [i] the rightarm is slowly extended diagonally upward to the right, with theopen palm up, and the left arm is slowly extended to the left side of
the body, with the open palm up, and meanwhile, the body makes a
360-degree rotation to the right as the arms are slowly extended,28

respectively, and [ii] next, the left arm is extended straight,
diagonally forward to the left with the palm down, and the right arm,
which is raised so as to create a space in the armpit, is slightly bent
at the elbow and is placed by the chest, with the palm down, while
the extended left arm is returned to the front of the chest with thepalm turned inward, and the left hand is placed above the right handin a way so as not to overlap, and both palms are placed in front of
the chest parallel to the body.
First, with regards to the movement of [i], Plaintiff asserts thatthe dancer taking sliding steps for eight beats while extending thearms upward and outward represents the flow of time.

Regardingthis point, concerning the movement by the hand of extending botharms upward and outward, a similar movement is found in thechoreographies of the examples indicated in the lower left cornerand lower right corner in Exhibit Ko 25.

However, such movement

is different from the movement of [i] in that steps for rotation are
not taken during the movement, and there is no other similar
example in which steps for rotation are taken in this place.

Theturn is a type of normal steps, but a turn is not usually assumablefrom the meanings of the lyrics or from the theme, and as the dancer
makes a turn with the arms widely stretched out, the liveliness of theentire body is enhanced to an extent that is not found in any otherexample, so that it should be said that the difference is even moresignificant.

Meanwhile, Defendant asserts that the hand movement

is found in similar examples and that the movement by the feet
consists of existing steps, and that the combination thereof iscommonplace.

However, as described above, the assertion cannot

be accepted.
Next, with regards to the movement of [ii], Plaintiff asserts thatthe movement represents that "you and I are always together
forever", but the movement of placing one hand to the chest while
extending the other hand forward is a hand motion for "'oe" (you)(Exhibits Otsu 3, 5), and the movement of turning both palms,
which are in front of the chest, to the dancer's direction is a handmotion for "au" (I), and the choreographies indicated in the lower
right corner of Exhibit Ko 25 show an example for the movement of29extending of the hand, which is then bent and returned to theposition in front of the chest, although there is the difference ofusing one hand instead of both hands for "'oe".
c.

Accordingly, of the choreographies corresponding to the lyrics
here, it can be evaluated that the movement of [i] shows Plaintiff's
personality even more strongly whereas the movement of [ii] does
not show Plaintiff's personality.

(I) Sweetheart mine E pili maia.

Meanings of these lyrics are the same as the above (D).

b.

Choreography 6 consists of the following movements which canbe largely divided into the following two parts, namely, [i] after
both arms are bent inward at the elbow and both hands rotate oncein front of the chest, with palms open, the left arm, still bent at the
elbow, is raised so as to create a space in the armpit, and the left
hand is placed in front of the chest with the palm up, and the righthand is extended diagonally forward to the right from the position in
front of the left chest, with the palm up, and [ii] next, the movementof [ii] in the above (D) is performed.
First, with regards to the movement of [i], Plaintiff asserts thatthe choreography is created from the movement for "heart", whichmeans "lover".

However, while the examples indicated in thelower left corner and lower right corner of Exhibit Ko 25 aredifferent in that both examples use the movement of crossing thearms in front of the chest (a movement similar to the hand motion
for "aloha" (love)), the example in Exhibit Otsu 12 shows the samechoreography as that of Plaintiff.
Also, the movement of [ii] is a hand motion for "e pili"(together) like the movement in [ii] in the above (D), so that there isa similar example as well.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(J) Interludea.

Choreography 6 consists of the following movements which canbe largely divided into the following three parts, namely, [i] thebody is turned 90 degrees to the right, and simultaneously, the left
arm is raised so as to create a space in the armpit, and is bent at the30

elbow, and the left hand is placed horizontally in front of the chestwith the palm down.

Once the body is turned 90 degrees to theright, the dancer picks up the skirt with his right hand by the hem
near the right knee, and slightly raises the skirt.

Keeping the same

posture, the dancer makes a 90-degree turn to the left until facing
front, and [ii] next, the dancer extends the left arm diagonallyforward to the left, and raises it so as to create a space in the armpit,
and lightly bends it at the elbow, and places the right arm in front of
the chest.

With the palms of both hands turned down, a wavy

motion is made once, slowly with both palms, and [iii] finally, theright arm is extended diagonally forward to the right, with the palmup, as if to scoop up something from underneath, and later the left
arm is similarly extended diagonally forward to the left.
Regarding this point, the movement of [ii] is a hand motion for
the interlude (Exhibit Otsu 5, page 30, 31), and as for the movementof [iii], the same movement is found in the choreography indicatedin the lower right corner of Exhibit Ko 25, although the example
uses each hand respectively instead of both hands at the same time,
and thus it cannot be said that the difference is significant.

On theother hand, since the movement of [i] can be found in neither otherchoreographies of Exhibit Ko 25 nor in the choreographies of
Exhibit Otsu 12, and even in light of the examples for the intro,
interlude, and outro for other songs, it cannot be acknowledged thatthe movement is commonplace as a choreography for an interlude.
b.

Accordingly, it can be evaluated that the choreographies
corresponding to the interlude show Plaintiff's personality withregards to the movement of [i].

Meanwhile, Defendant asserts that

Choreography 6 is an existing hand motion, but as described above
in a, while Choreography 6 contains parts which are existing handmotions, there are other parts as well, and thus Defendant's assertion
cannot be accepted.
(K) 'Auhea wale ana 'oe, Ku' u lei o ka pō, Pō anu ho 'okahi no au,
Sweetheart mine, E pili mai, Inā 'o 'oe a 'o au, 'Ike i ke ahi o Makana,He makana ia na ke aloha, No nā kau a kau, 'o 'oe a 'o au, Sweetheartmine, E pili mai (second verse)
The same as described above in (A) to (I).
31

(L) Sweetheart mine E pili mai (repeated twice)a.

For the first "Sweetheart mine", Choreography 6 has amovement which is different from that which is used for the same
lyrics appearing immediately before, in that both elbows are bent,
and both wrists are crossed in front of the chest with the palms
turned inward, as the dancer makes a 360-degree turn to the right.
This movement is performed while the dancer makes the handmotion for "aloha" (love) (Exhibit Otsu 4), of spreading out both
hands or sticking them out to the front and then crossing them infront of the chest, with the right hand on top and the left hand on
bottom, as the dancer makes a turn, and this movement is normallyassumable from the lyric of "Sweetheart mine".

Choreographies

indicated in the lower left corner and lower right corner of Exhibit
Ko 25 show the same movement, except for the turn.

It can be said

that the addition of a turn here is creative to a certain degree.
However, in the case where the final lyrics are repeated before theoutro, the addition of a turn to give some change to the dance issomething that is also found in the choreographies indicated in theupper right corner of Exhibit Ko 46 and in Exhibits Otsu 35-7 and35-8 immediately before the outro ("aloha ē" in F (U) below) of thesong (Maunaleo) corresponding to Choreography 17 (described
below in F), so that the presence or lack of a turn cannot be
considered a significant difference.
b.

Also, for the second "Sweetheart mine", the movement ofChoreography 6 is such that the left arm is extended, unbent, and islowered, and the right arm is bent at the elbow, with the palm turned
inward, and the place around the tips of the pointer finger and the
middle finger is touched to the mouth once, and later, the right arm
is slowly extended diagonally forward to the right, with the palm up,
and in doing so, two steps are taken to the left, alternately with theleft foot and the right foot.

This movement is another hand motion

for "aloha" (love), of extending one hand or both hands forward,
after they are placed to the mouth (Exhibit Otsu 3), and thismovement is normally assumable from the lyric of "Sweetheartmine".
c.

Also, as for the "E pili mai" which is repeated twice here, it32cannot be evaluated, as described in the above (D), that Plaintiff's
personality is shown.
d.

Based on the above, it can be said that the repetitive part here isbasically found in similar examples, or is a movement that can beassumed from the lyrics.

(M)

Outro
The same as described above in (J), and it can be evaluated that

Plaintiff's personality is shown.
(N) Summary
As described above, Choreography 6 not only has choreographies
which are completely original (aforementioned (C) [ii], (G) [i] [and(K)]), but also is arranged throughout in significantly different ways ascompared with other choreographies (above (C) [i], (F), (H) [i], (J) [i][and (K)]), so that it is reasonable, when Choreography 6 is seen as awhole, to acknowledge that Plaintiff's personality is shown for thewhole of Choreography 6.
B. Choreography 11 (Song: Lei Ho' oheno)(A) Introa.

Choreography 11 consists of the following movements, namely,[i] the left arm is raised so as to create a space in the armpit, and isbent at the elbow, and the left hand is brought to the front of thechest and placed there horizontally, with the palm down, and theright hand holds the hem of the skirt at about the right side of thehip, and lightly picks up the skirt, and in doing so, the body isturned diagonally forward to the right, and [ii] next, the left arm isbrought down, unbent, and the right arm is extended straightforward, unbent, at shoulder height, with the palm up, and in doing
so, the body is turned diagonally forward to the left, and [iii] later,
the extended right arm is raised so as to create a space in the armpit,
and is slowly bent, with the palm down, and is stopped in front of
the chest, and the above movements are performed by reversing
right and left, followed by the same movements performed
alternately by the left arm and the right arm, respectively.
On the other hand, in the choreographies indicated in the upper
right corner, lower left corner, and lower right corner of Exhibit Ko
26, both hands are alternately extended, but before doing so, the33other hand is never bent, so that these choreographies do not include
the movements found in Choreography 11, of bending one hand andthen extending the other hand.

Since this difference affects theshape of the entire body, it should be considered a significant
difference.

As for the hand motions for the intro and interlude(Exhibit Otsu 5), of extending one hand diagonally forward andplacing the other hand in front of the chest, with the palm down, andthe same movement being performed by the opposite side, they do
not involve the movement in which, before one hand is extended,
the other hand is bent, and the movement of bending the other hand
before extending one hand is not normally assumable from thetheme.
Meanwhile, Defendant asserts that these movements arecommonly found in a hula dance.

However, there is no appropriate

evidence that provides basis for acknowledging as such, andfurthermore, even if the movement is commonplace in a hula dance,since it cannot be said that doing so in a part that has no lyrics, likethe intro, is commonplace, Defendant's assertion cannot be accepted.
b.

Accordingly, the choreographies corresponding to the interlude
are such that at least existing choreographies and hand motions are
combined with different movements, and a significant arrangement
is made thereto, so that it can be evaluated that Plaintiff's
personality is shown.

(B) E ku' u pili alohaa.

"ku' u" means "my", "pilialoha" means "friendship with a closefriend" (Exhibit Otsu 54), and Plaintiff gives the translation, "mydear friend".

b.

Choreography 11 consists of the following movements which
can be largely divided into the following three parts, namely, [i] theright arm is extended, unbent, diagonally forward to the right withthe palm up, at chest height, and the left arm is bent at the elbow,
and the left hand is placed in front the left chest with the palm
turned inward, and the body is turned to the right first, and is thenturned so as to face front, and [ii] next, after facing front, the dancer
performs the movement of extending both arms straight forward atshoulder height with the hands trying to clasp against each other,34

and [iii] both arms are slowly bent at the elbow at the same time,and both wrists are crossed in front of the chest with the palms
turned inward.
Regarding these movements, Plaintiff asserts that extending theright hand horizontally and placing the left hand to the chest, andthen clasping both hands and crossing the arms in front of "poli"(heart) or the chest, represent the love for a very close and dearfriend.
Regarding this point, the movement of [ii] is almost the same as
the hand motion for "e pili" (together), as described in the above A(D) (Exhibit Otsu 26), and the movement of [iii] is the hand motion
for "aloha" (love), as described in the above A (G) (Exhibits Otsu 4,
5).

However, while the choreography indicated in the lower left

corner of Exhibit Ko 26 involves the movement of [ii], and thechoreography indicated in the upper right corner of Exhibit Ko 26
involves the movement of [iii] as performed repeatedly, and thechoreography indicated in the lower right corner of Exhibit Ko 26
involves the movements of [ii] and [iii] after the movement of
spreading out both arms, none of the choreographies involves the
movement of [i], and there is no choreography in which, like
Choreography 11, all of the movements [i] to [iii] are performed.
Also, the movement of [i] is not normally assumable from themeanings of the lyrics or from the theme.
c.

Accordingly, the choreographies corresponding to the lyrics here
consist of an arrangement of existing choreographies and handmotions combined with different movements, and since this makes
the movement of the entire body different, it should be considered asignificant difference, and it can be evaluated that Plaintiff's
personality is shown.

Although Defendant asserts that the

movement of [i] is commonplace in a hula dance, even if such is thecase, it is as described in the above a, that the use of the movementof [i] as the choreographies corresponding to the lyrics here is notcommonplace, so that Defendant's assertion cannot be accepted.
(C) Ku' u lei kau po' ohiwia.

"Ku' u" is "my", "lei" is "wreath" (worn on the head or aroundtheneck)",afigurative
35

expression

for"belovedchild/wife/husband/lover/younger brother/younger sister", "kau"means "to hang", and "po' ohiwi" means "shoulder" (Exhibit Otsu54), and Plaintiff gives the translation, "the lei decorating myshoulder".
b.

Choreography 11 consists of the following movements which
can be largely divided into the following two parts, namely, [i] botharms are raised so as to create a space in the armpit, and are bent at
the elbow, and the hands are placed in front of the chest, in such a
way that they do not overlap, with the palms turned inward, andthen, as the right arm maintains the same state, the palm of the righthand is turned down, and the left arm, while still slightly bent at the
elbow, is brought over the head to pass behind the head and to thefront of the chest, and [ii] next, the body is turned diagonallyforward to the left, and both arms are raised so as to create a spacein the armpit, and are bent at the elbow, and the hands are placed on
the shoulders with the palms down, and then, the body is turned
diagonally forward to the right, and both hands are simultaneously
brought down, with the palms turned inward, so that they pass infront of the shoulders as the fingers make slightly swishing
movements.
Regarding these movements, Plaintiff asserts that moving theleft arm from the top of the head to the shoulders and placing theright hand in front of the chest represent the gesture of decorating
oneself by hanging a lei over the shoulders.
First with regards to the movement of [i], the hand motion for"lei" is, as described above in A (B), the movement of hanging a lei
over the shoulders by, sort of like, lifting up the arms from under thechest.

There is also the gesture in which one hand is used tosupport the bottom of the lei and the other hand is used to hang thelei over the shoulders (Exhibit Otsu 4).

In the choreographies

indicated in the upper right corner, lower left corner, and lower rightcorner of Exhibit Ko 26, the movement is such that both hands areused to place a lei around the neck.

As such, the movement of [i]here is the same as these movements.
Next, regarding the movement of [ii], the hand motion for "po'ohiwi" (shoulder) is such that while the eyes are directed to the36shoulders, one hand touches a shoulder lightly (Exhibit Otsu 4), an din the choreographies indicated in the upper right corner and lower
right corner of Exhibit Ko 26, the body is kept facing front, and both
hands are placed on one shoulder, and then they are placed on theother shoulder, and thus there is no such movement as half the bodybeing twisted and both hands being placed on the shoulders
simultaneously (it should be noted that the choreography indicatedin the lower left corner of Exhibit Ko 26 does not even have any
movement in which a hand is placed on a shoulder).

As such,while Choreography 11 is based on the existing movement ofplacing hands on shoulders, since twisting half the body while
placing both hands on the shoulders at the same time produces adynamic change that makes the movement different from similar
examples, it should be said that Plaintiff's personality is shown to acertain degree in this respect as well.
(D) Onaona i ka ihu
a.

"Onaona" means "pleasant scent", and "ihu" means "nose"(Exhibit Otsu 54), and Plaintiff gives the translation, "sweet andmild scent".

b.

Choreography 11 has a movement in which the left arm isextended diagonally forward to the left at shoulder height, and thefingers of the left hand are pinched and directed upward, and theright arm is extended and the right hand touches the fingertips of theleft hand once, and the right arm is moved to the right at shoulder
height so as to pass in front of the nose (when the fingertips of theright hand comes to the front of the nose, the dancer actually draws
in a breath to smell), and when the right hand comes to the front of
the right shoulder, the palm is turned down, and the right arm isextended diagonally forward to the right.
Regardingthesemovements,

Plaintiff

asserts

thatthemovements of extending the left hand to hold a flower, which is asymbol for a best friend, and touching the tip of the flower by theright hand, and bringing the flower to one's own nose to smell thescent of the friend (as symbolized by the flower) who smells sweetand mild, represent how much the best friend is important and close.
However, the movement of smelling a scent by holding a hand to the37nose is the hand motion for "onaona" (pleasant scent) (Exhibits Otsu
4, 26), and is also performed in the choreographies indicated in thelower left corner and lower right corner of Exhibit Ko 26, andfurthermore, the movement here is the same as the choreography
indicated in the lower left corner of Exhibit Ko 33, whichcorresponds to the part, "onaona" (movement of [ii] in E (B) below),in the lyrics, "He 'ala onaona kūpaoa", which are the same as the
lyrics here, and which are among the lyrics for the song (Māpu Mau
Ke' Ala), which corresponds to Choreography 16 (as described
below in E).

Meanwhile, Plaintiff asserts that there is no example

in which the same movement as Choreography 11 is performed, butsuch assertion cannot be accepted in light of what is described above.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(E) Nohea i ka makaa.

"Nohea" means "pretty", and "maka" means "eye" (Exhibit Otsu54), and Plaintiff gives the liberal translation, "lovely appearance".

b.

Choreography 11 consists of the following movements which
can be largely divided into the following two parts, namely, [i] withthe palm of the right hand turned down, the right arm is extended
diagonally forward to the right at shoulder height, and at the sametime, the left arm is extended upward with the palm turned inward,and [ii] the left arm is raised so as to create a space in the armpit,
and is bent at the elbow, and as the palm of the left hand is placedby the left eye, the palm of the right hand is turned up, and the rightarm, which remains extended, is raised straight above.
Regarding these movements, Plaintiff asserts that, by extending
the left hand towards the heaven (distant sky) and bringing the handto one's eye, they indicate the message, "you are a gift from theheaven, and I love you".
Regarding this point, the movement of [ii] is the hand motion for"maka" (eye) (Exhibit Otsu 4), of touching the area around the eyewith both hands or with one hand.

However, while otherchoreographies of Exhibit Ko 26 involve the movement of [ii], they
do not involve the movement of [i], and there is no choreography inwhich, like Choreography 11, the movement of [i] is performed in38

addition to performing the movement of [ii], and furthermore, themovement of [i] is not normally assumable from the meanings of the
lyrics or from the theme.
c.

Accordingly, the choreographies corresponding to the lyrics here
consist of the arrangement of existing choreographies and handmotions combined with different movements, and since, as a result,the movement of the entire body becomes different, it should beconsidered a significant difference, and it can be evaluated that
Plaintiff's personality is shown.

(F) Liliko i ka ua kilihunea.

"Liliko" means "to shine", "ua" means "rain", and "kilihune"means "soft and misty rain (Exhibits Otsu 37, 54, the entire importof the oral argument), and Plaintiff gives the translation, "shining
brightly in the misty rain blown by the wind".

b.

Choreography 11 consists of the following movements which
can be largely divided into the following two parts, namely, [i]while the right arm is extended upward with the palm facing front,
the left hand, with the palm facing front, is raised to a slightly lower
position than that of the right hand, and is placed alongside, andboth palms are closed once and then opened, and in that state, thedancer makes a 180-degree turn to the left, and once the body is thus
turned back, the dancer once again closes the palms and then opens
them, and [ii] next, as the dancer shakes the fingers of both palms
flutteringly, the palms are gradually brought diagonally downward
to the right, to hip height, and at that time, the body makes a 215degree turn to the right, and from the state of looking back, the bodyis turned diagonally forward to the right.
Regarding these movements, Plaintiff asserts that as the dancer,
while making a turn from the direction away from the audience(back side) to face front, makes the gesture of moving both hands ina way that suggests sparkles, these movements represent how the
misty rain (the rain called "kanilehua"), which is a rain that ischaracteristic of the region of Hilo, on the island of Hawaii is blownby the wind as it sparkles in the flow.
First, the movement of [ii] is the same as the hand motion for"ua" (rain) (Exhibits Otsu 3, 4), of holding up both hands, and while39

moving the fingertips in a sprinkling motion, both hands are lowered
diagonally at the same time.

In the choreographies indicated in thelower right corner and lower left corner of Exhibit Otsu 26,
fingertips of both hands or one hand are moved in a sprinkling
motion and lowered in the form of an S-shape (it is acknowledgedthat this movement corresponds to what is explained in Exhibit Otsu
3, concerning the hand motion for "ua", that the lowering of hands
as if to draw an S-shape represents "fog" or "snow").

Accordingly,

the movement of [ii] is a combination of the hand motion for "ua"and a turn.
Also, while the movement of [i] is not a special hand motion for
lyrics, in order to make the movement of lowering both hands downfrom above in the movement of [ii], it inevitably becomes necessary
to perform the movement of raising both arms up in the previous
step, and since such movement is performed in other choreographiesof Exhibit Ko 26 as well, the difference once again lies in thepresence or lack of a turn.
In this regard, the turn here involves the movement of the entire
body and produces liveliness, but the choreographies in the lower
right corner of Exhibit Ko 26 involve the movement, which is thesame as the above movements of [i] and [ii], for the placecorresponding to "kanilehua" in the following lyrics in (G), ofextending both hands upward, and then making a turn, and whilemoving the fingertips in a sprinkling motion, lowering both arms
diagonally at the same time.

As such, in light of the meaning of

the lyric, which is such that the "kanilehua" used therein is the"name of the well-known fog-like rain that falls in Hilo (ageographical location on the island of Hawaii)"(Exhibit Otsu 54), it
cannot be said that the combination of a turn for the "ua" here inorder to create movements [i] and [ii] is significant.

Meanwhile,

Plaintiff asserts that the turn in the movements of [i] and [ii] isoriginal, but as described above, such assertion cannot be accepted.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(G) Kilipohe i ke kanilehua (only "lehua" is repeated)a.

"Kilipohe" means "wet", "kanilehua" is the "name of the well40

known fog-like rain that falls in Hilo (a geographical location on theisland of Hawaii)" (literally meaning "(the rain which) the flower oflehua drinks"), "lehua" means the "flower blossoming on the tree of''ōhi'a'" or "island flower on the island of Hawaii, as is well-known
in songs and legends" (Exhibit Otsu 54, the entire import of the oral
argument), and Plaintiff gives the translation, "wet with the rain of
kanilehua".
b.

For the first part of "Kilipohe i ke kanilehua", Choreography 11
consists of the following movements which can be largely divided
into the following three parts, namely, [i] the fingers of the left handare pinched and directed upward, and the right hand is placed under
the left hand as if for support, and while the hands remain as such,
both hands are extended high, diagonally upward to the left, as the
direction of the body is returned to the direction of facing front, and[ii] the right hand is raised even higher than the left hand, with thepalm of the right hand facing front, and as the fingers of the righthand make fluttering motions behind the left hand, both hands aregradually lowered diagonally downward to the right until they reachchest height, and in the following part of "lehua" which repeats
itself, [iii] the fingers of the left hand are pinched and are directed
upward, and the right hand is placed under the left hand as if forsupport and the hands, which are at shoulder height, are extended
straight forward, and the body makes a 360-degree turn to the right,
and later, as the hands remain as such, both hands, which areextended forward, are slowly raised diagonally upward to the left.
Regarding these movements, Plaintiff asserts that the movement,
in which the left hand, which is accompanied by the right hand,holds the flower, which is the symbol for a best friend, and raising
the hand, which holds the flower, upward to a high position,
represents the deep affection for the best friend, and that lowering
the fingers from the direction of the heaven (distant sky) as they
make tiny trembling motions represents how the bright misty rain
(rain called "kanilehua"), which was carried by gentle wind, pours
softly, and the movement of pinching the fingers of the left hand andthen gradually lowering the right hand while making fluttering
motions represents how the misty rain called "kanilehua" keeps the41flower of "lehua", which symbolizes the island of Hawaii, fresh.
First, with regards to the movement of [i], it is the same as thehand motion for "pua" (flower), of making a bud-like shape by thepinching of the hand and directing the hand upward (Exhibits Otsu 4,
5, 25), and the movement of extending both hands upward isnecessary in preparation for the next movement for "ua" (rain).
Also, the movement of [ii] is such that the left hand makes the handmotion for "pua" (flower) while the right hand makes the handmotion for "ua" (rain), as described in the above (F).

Accordingly,of what is described above, making the hand motion for "ua" isassumable from the aforementioned meanings for "Kilipohe" and"kanilehua", and the hand motions for "ua" and misty rain, which isa type of rain, are adopted by other choreographies of Exhibit Ko 26
as well.

However, adoption of factors for "pua" in the lyrics partthat precedes the repetitive part is not directly related to themeanings of "Kilipohe" and "kanilehua", and even if literalmeanings for "kanilehua" include the meaning of "flower" by thename of "lehua", adoption of factors for "pua" in this place is notfound in other choreographies of Exhibit Ko 26, and especially withregards to the movement in which the factors for "ua" and "pua" areparallely adopted at the same time, such movement is not found inother choreographies of Exhibit Ko 26.

Accordingly, themovement is original to Choreography 11, and it can be evaluatedthat Plaintiff's personality is shown.
Next, with regard to the movement of [iii], the hand movement
is a hand motion for the above "pua", so that it is assumable fromthe meaning for the lyric here (lehua).

However, while in

Choreography 11, the steps taken involve a turn, such steps
involving a turn are not found in other choreographies of Exhibit Ko
26, and since the difference in liveliness resulting from the presenceor lack of a turn cannot be ignored, it should be said that Plaintiff's
personality is shown to a certain degree in this respect as well.
c.

Accordingly, since the lyrics part corresponding to the lyrics
here are original to Choreography 11, it can be evaluated that
Plaintiff's personality is shown.

(H) E ku' u pili aloha, Ku' u lei kau po' ohiwi, Onaona i ka ihu,
42

Nohea i ka maka, Liliko i ka ua kilihune, Kilipohe i ke kanilehua(second verse)
The same as described above in (A) to (G).
(I) Wewelo ke aloha i ka 'onohia.

"Wewelo" is a transformation of "welo", which means "to flutter,to float", and "aloha" means "love", and "'onohi" means "eyeball"(Exhibits Otsu 33, 54, the entire import of the oral argument), andPlaintiff gives the translation, "love that flows before my eyes".

b.

Choreography 11 consists of the following movements which
can be largely divided into the following four parts, namely, [i] botharms are raised so as to create a space in the armpit, and are lightly
bent at the elbow upward, and both hands are lined up in front of theface with the palms facing front, and while maintaining that state,
the dancer makes a 360-degree turn to the right, and [ii] when theturn is about to be completed, the right arm is raised so as to create aspace in the armpit, and is bent at the elbow, and the right hand,with the palm turned inward, is placed by the right eye, and the palmof the left hand is turned up and the left arm is lightly extended
diagonally forward to the left at shoulder height, and [iii] next, botharms are bent at the elbow and brought to the front of the chest, andthe palms of both hands are turned inward, and both wrists arecrossed in front of the chest, and [iv] next, the left arm is raised so
as to create a space in the armpit, and is bent at the elbow, and theleft hand is placed by the left eye with the palm turned inward, andthe palm of the right hand is turned up and the right arm is extended
straight, diagonally upward to the right, and the right arm is raisedso as to create a space in the armpit, and is bent at the elbow, andthe right hand is placed by the right eye with the palm turned inward,
and meanwhile, the palm of the left hand is turned up, and the left
arm is extended straight, slightly diagonally downward to the left.
First, with regards to the movement of [i], Plaintiff asserts thatthe movement of rotating both hands in front of the face represents
how love floats before the eyes and flows, as well as the feeling of"look at me, I am here to be loved by you", and that, by rotating th ebody, it expresses how the love flows with the passing of time.
However, such movement is not assumable from the lyrics, and43since similar choreographies cannot be found anywhere, including
the other choreographies of Exhibit Ko 26, it should be said that the
movement is original to Choreography 11, and the movement
produces a significant difference to the movement of the entire bodyas a result.
On the other hand, with regards to the movement of [ii], giventhat the meaning for "'onohi" (eyeball) is the same as the meaningfor "maka" (eye), and the hand motion for "maka" consists oftouching around the eyes with both hands or with one hand (Exhibit
Otsu 4), it is acknowledged that the movement is assumable fromthe meanings of the lyrics here.
Next, with regards to the movement of [iii], Plaintiff asserts thatthe movement of crossing the hands in front of the chest represents
deep love for a best friend.

However, this movement is the sameas the hand motion for "aloha" (love) (Exhibits Otsu 4, 5), and it isacknowledged that the movement is the same as the choreographies
indicated in the lower left corner and lower right corner of Exhibit
Ko 26.
Furthermore, with regards to the movement of [iv], it isacknowledged that the movement, like the movement of [ii], isassumable from the meanings of the lyric for "'onohi" here.
c.

Accordingly, while it cannot be acknowledged that the
movements of [ii] to [iv] show Plaintiff's personality, as for the
movement of [i], the movement is original to Choreography 11, andthus it can be evaluated that Plaintiff's personality is shown.

(J) 'Ume' ume mai ho' i kaua.

"Ume' ume" means "attractive", "mai ho' i kau" means "superb"(in the case of "mai" only, it means "please come this way")(Exhibits Otsu 4, 33, 54), and Plaintiff gives the translation, "howattractive you are".

b.

Choreography 11 has a movement in which the left arm isextended diagonally downward to the left, with the palm of the left
hand turned up, and while in that state, the right arm is bent at the
elbow and lowered to the front of the right chest with the palm of
the right hand turned up, and as both arms are bent slightly, thepalms are shaken twice as if to beckon someone, and, with the palm
44

of the right hand turned up, the right arm is extended diagonally
downward to the right, and the left arm is bent at the elbow andplaced in front of the left chest with the palm of the left hand turned
up, and as the arms are bent slightly, the palms are shaken twice as
if to beckon someone.
Regarding this movement, Plaintiff asserts that the movement oflooking at both directions and making the beckoning gesture withboth hands, respectively in each direction, represent the message of"I want you to come here quickly", and that the best friend is so
seductive or attractive that the dancer acts in such a way.

However,such movement consists of the hand motion for "mai" ("please comethis way") (Exhibit Otsu 5), of turning both palms up, andpositioning the right hand in front of the chest while the left hand isextended diagonally forward to the left, and the left hand, bent at thewrist, making a movement of softly pulling in as if to lure someone,
and holding up both palms in front of the chest, all of which arerepeated after reversing the directions of the body.

The same

movement, although without the repetition, is found in thechoreography indicated in the lower right corner of Exhibit 26 as
well.

Meanwhile, Plaintiff asserts that there is no similar example,

but there is a similar example, as described above, and thus
Plaintiff's assertion cannot be accepted.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(K) E kahi lei ho' ohenoa.

"Kahi" means "only one", "lei" means "wreath" (worn on thehead or around the neck), a figurative expression for "beloved
child/wife/husband/lover/younger

brother/younger

sister","ho'oheno" means "to love" or "expression of love (in songs, etc.)"(Exhibits Otsu 33, 54), and Plaintiff gives the liberal translation,"my beloved friend".
b.

Choreography 11 consists of the following movements which
can be largely divided into the following two parts, namely, [i] botharms are raised so as to create a space in the armpit, and are bent at
the elbow, and both hands are lined up side by side, so as not tooverlap, in front of the chest with the palms turned inward, and a45

wavy motion is created with the palms once, and in that state, botharms are extended straight forward at shoulder height, and [ii] next,
both arms are extended, and with the palms lined up, both hands,
passing in front of the face, are raised to above the head as if to holdsomething up, and once the hands are fully extended upward, both
hands, which are kept lined up, are brought behind the head bybending the arms at the elbow, and while keeping the elbows bent,
both arms are lowered in such a way that each arm respectively
passes the front of each shoulder.
Regarding these movements, Plaintiff asserts that the gesture ofpicking up a lei with the fingers of both hands and then hanging itover the shoulders represents the message, "you are the only person
for whom I hang the lei over the shoulders or the chest".

However,with regards to the movement of [ii], the hand motion for "lei"(Exhibit Otsu 4), which is performed with one hand, is performed
using both hands, and the movement is the same as thechoreographies indicated in the lower left corner and lower rightcorner of Exhibit Ko 26.

Also, like the movement of [i], themovement of extending both arms forward as a precondition for the
movement of [ii] is also found in the choreography in the lower
right corner of Exhibit Ko 26, and the preceding movement of lining
up both palms in front of the chest is not an obvious movement, andthus it cannot be considered a significant difference as an act ofprecondition for extending both arms forward.

Meanwhile,

Plaintiff asserts that the movement is original in that this different
movement is performed prior to the movement of hanging a lei
around the neck.

However, such assertion cannot be accepted as

described above.
c.

Accordingly, it cannot be said that thechoreographies

corresponding to the lyrics here show Plaintiff's personality.
(L) E ku' u pili aloha, Ku' u lei kau po' ohiwi, Onaona i ka ihu, Nohea i ka
maka, Liliko i ka ua kilihune, Kilipohe i ke kanilehua, Wewelo ke aloha
i ka 'onohi, Ume' ume mai ho' i kau, E kahi lei ho' oheno, E ku' u pilialoha, Ku' u lei kau po' ohiwi, Onaona i ka ihu, Nohea i ka maka, Liliko
i ka ua kilihune, Kilipohe i ke kanilehua
The same as described above in (A) to (H), and (J) to (L).
46

(M)

Outro
Choreography 11 consists of the following movements, namely, [i]the fingers of the left hand are pinched and directed upward, and theright hand is placed under the left hand as if for support, and the hands
are extended forward at shoulder height, and in that state, the bodymakes a 360-degree turn to the right, and [ii] keeping the hands in thesame state, both hands are slowly raised diagonally upward to the left,and [iii] the left arm is raised so as to create a space in the armpit, andis bent at the elbow, and the left hand is brought horizontally to thefront of the chest with the palm down, and the right hand holds the hemof the skirt around the right side of the hip, and picks up the skirt, andin doing so, the body is turned diagonally forward to the right, and theleft arm is lowered straight downward, and the right arm, with the palmup, is extended straight forward at shoulder height, and in doing so, thebody is turned diagonally forward to the left, and [iv] the right arm israised so as to create a space in the armpit, and is bent at the elbow, andthe right hand is placed over the right chest, with the palm down, andthe left arm is extended forward with the palm down at shoulder height,
and finally, both hands are lowered.
Regarding these movements, first of all, it is unknown what otherchoreographies are performed in this part, so that whether or not there isoriginality when compared with other examples is unknown, andfurthermore, even Plaintiff does not point out this part as being
particularly creative.

In light of the foregoing, it cannot be

acknowledged sufficiently that Plaintiff's personality is shown in thesechoreographies.
(N) Summary
As described above, Choreography 11 not only has completely
independent choreographies ((G) [i] and [ii], (I) [i] [and (L)]), but also
arrangements which are found throughout and which are different fromthe arrangement of other choreographies ((A), (B) [i], (C) [ii], (E), (G)[iii] [and (L)]).

Accordingly, when Choreography 11 is seen as awhole, Plaintiff's personality is shown, and it is reasonable toacknowledge copyrightability for the whole of Choreography 11.
C. Choreography 13 (Song: Ua Lanipili I Ka Nani O Papakōlea)(A) Ua lanipili i ka nani o Papakōlea
47

a.

"Ua" means "rain", and "lanipili" is a geographical name, "nani"means "beautiful", and "Papakōlea" is a geographical name (Exhibit
Otsu 37, the entire import of the oral argument), and Plaintiff gives
the translation, "the rain of lanipili in Papakōlea is beautiful".

b.

Choreography 13 consists of the following movements which
can be largely divided into the following four parts, namely, [i] botharms are bent lightly at the elbow, and the hands are extended
upward with the palms facing front and the fingers extended, and as
the fingertips make tiny trembling motions, the hands are lowered tochest height, and [ii] next, with the palm turned inward thefingertips extended, the right palm is placed in front of the leftshoulder, and the left palm is placed on the right hip, and [iii] next,
the left arm is lightly bent at the elbow, and left hand, with the palm
turned up and the fingertips lightly extended, is extended diagonallyforward to the left at shoulder height, and the right arm is lightly
bent at the elbow and, with the palm turned inward and thefingertips lightly extended, is extended upward, and in doing so, theface and the eyes are turned to the direction to which the right arm
is extended, and the body is turned diagonally backward to the left,and [iv] finally, with the body still turned diagonally backward to
the left, the palms of both hands are turned to the front with thefingertips extended, and both arms are extended upward, and indoing so, the left hand is raised to a slightly high position at first,
and next, the right hand is raised to a slightly high position, and theheights of both hands are reversed, and the face and the eyes areturned to the direction of the hands.
First, with regards to the movement of [i], Plaintiff asserts thatthe movement of slowly lowering both hands from the direction of
the heaven (above the head) represents the pouring of the rain.
However, this movement is the hand motion for "ua" (rain) (Exhibit
Otsu 4), of holding up both hands and simultaneously bringing themdown from above while making fluttering motions with fingertips as
if it is raining, and this is the same as the choreographies indicatedin the lower left corner and the lower right corner of Exhibit Ko 51.
Meanwhile, Plaintiff asserts that the movement is different from thechoreography indicated in the lower right corner of Exhibit Ko 51 in
48

terms of the direction, angle, speed, and number of the hand
movements, as well as of the direction of the body when making the
movement, so that there is originality, but the differences pointed
out by Plaintiff are all minor differences, and thus Plaintiff's
assertion cannot be accepted.
Next, with regards to the movement of [ii], Plaintiff asserts thatthe movement of crossing the hands in front of the chest indicatesthat the rain of lanipili is loved by people, in addition torepresenting "pili" (closeness).

However, Plaintiff created thischoreography based on its own interpretation in which "lanipili" isgiven an alternative meaning of "pili" (together, close), and thischoreography is not found in other examples, including the otherchoreographies of Exhibit Ko 51, and furthermore, it is not a
movement that is normally assumable from the meanings of lyrics
and the theme, so that it is acknowledged that the movement isoriginal to Choreography 13.
Next, regarding the movements of [iii] and [iv], Plaintiff assertsthat the movements of opening up the arms, which are crossed, andturning back, and extending the arms in that state represent the
beauty of the region of Papakōlea.

However, with regards to the

movement of [iii], given that the hand motion for a "place", which isrelated to the lyric of Papakōlea (a geographical name), consists ofraising one hand and the other hand making a movement that starts
from the side of the raised hand, passing in front of the body, andspreading out horizontally (Exhibits Otsu 3, 5), and that the hands
make an L-shape as a result, the movement of [iii] is the handmotion for "place" combined with a turn.

Since the choreography

indicated in the lower right corner of Exhibit Ko 51 adds a turn inthis place as well, it cannot be said that the presence or lack of aturn constitutes a significant difference.
Next, with regards to the movement of [iv], the movement ofreversing the heights of both hands, which are extended upward, isthe same as the choreography indicated in the lower right corner of
Exhibit Ko 51.

While Choreography 13 is performed with the backturned to the audience, the choreography indicated in the lower rightcorner of Exhibit Ko 51 is different in that the movement is49

performed as the dancer takes steps and looks in four directions.
However, since the choreography indicated in the lower right cornerof Exhibit Ko 51 includes the movement which is performed withthe back turned to the audience, it cannot be said that making a
movement with the back turned is original in this place.
Meanwhile, Plaintiff emphasizes that the difference lies in whether
or not the dancer makes the movement with the back turned to theaudience.

However, as described above, such difference cannot be

considered a significant difference in this place.
c.

Accordingly, of the choreographies corresponding to the lyrics
here, it cannot be evaluated that the movements of [i], [iii], and [iv]show Plaintiff's personality, but since the movement of [ii] isoriginal to Choreography 13, it can be evaluated as showing
Plaintiff's personality.

(B) He nani uluwehi ke kui pua meliaa.

"Nani" means "beautiful", "uluwehi" means "lush and beautiful
greenery", "pua melia" means "plumeria flower" (Exhibit Otsu 54,
the entire import of the oral argument), and Plaintiff gives theliberal translation, "decorated with lush and beautiful plumeria
flowers".

b.

Choreography 13 consists of the following movements which
can be largely divided into the following three parts, namely, [i] thepalm of the right arm is turned inward, and the left arm is bent
lightly at the elbow, with the palm turned up and the fingertips
extended lightly, and is extended diagonally forward to the left atshoulder height, and in doing so, the face and the eyes are turned tothe direction of the extended left arm, and [ii] next, both arms areraised so as to create a space in the armpit, and with the arms bent at
the elbow, the palms of both hands are turned inward with thefingertips extended, and the hands make a scooping motion from the
hip height to the chest height, diagonally forward to the left anddiagonally forward to the right, respectively (such movement as if toscoop up something from below with both hands), and [iii] theelbow of the left arm is extended lightly, and the left arm isextended forward to the left of the body at shoulder height, and thepalm of the left hand is turned up, with the tips of the pointer finger
50and the thumb joined, and as for the right arm, as the tips of thethumb and the pointer finger of the palm of the right hand are joined,
it passes just above the right hand from the right to the left, and later,
the fingertips of the left palm are extended and directed upward, andas for the right palm, the finger tips are extended and pinched anddirected upward, and in that state, the right palm is placed on theleft palm, and is moved diagonally forward to the right from theposition of diagonally forward to the left.
First, with regards to the movements of [i] and [ii], Plaintiff
asserts that they represent the beauty of the region of Papakōlea andthe many flowers of plumeria growing thick.

However, themovement of [i] is such that the hand motion which corresponds to"place" and which forms an L-shape with both arms is performed
while making a turn in a opposite direction from the movement of(A) [iii] above, and the movement is not found in other examples forthe same lyrics, including the other choreographies of Exhibit Ko 51,
and furthermore, the movement is not normally assumable from themeanings of the lyrics or from the theme, so that it is acknowledgedthat the movement is original to Choreography 13.

Meanwhile,

Defendant asserts that the movement is the hand motion for "nani"(beautiful), but since the hand motion for "nani" is made bylowering both hands or one hand down from above (Exhibits 4, 5,26), Defendant's assertion cannot be accepted.
Next, with regards to the movement of [ii], it is the same as thechoreography indicated in the lower left corner of Exhibit Ko 41,
corresponding to "uluwehiwehi" (movement of [ii] in D (D) below)of the lyrics, "Ua noho i ka malu i ka uluwehiwehi", which are thesame as the lyrics here, from among the lyrics for the song
(Blossoms nani ho'i e) corresponding to Choreography 15 (D below).
Since the meaning of the lyric, "uluwehi", is the same as themeaning of the lyric, "uluwehiwehi" (plural form of "uluwehi";
Exhibit Otsu 37), the movement of [ii] is assumable from the lyrics.
Next, with regards to the movement of [iii], Plaintiff asserts thatthe movement represents how the fragrant plumeria flowers arejoined together to make a beautiful lei.

However, the hand motion

for "pua" (flower), of pinching a hand and directing it upward to51

create a bud-like shape, may sometimes be performed with one hand
(Exhibit Otsu 4), and sometimes with both hands (Exhibits Otsu 5,25), and in Choreography 13, the hand motion for "pua" isperformed with both hands.

Choreography 13 is performed byjoining both hands together, but if, of the hand motions for "pua",that which should be performed with both hands is performed
without joining the hands, such difference concerns a minute part,so that it cannot be considered a significant difference.
c.

Accordingly, of the choreographies corresponding to the l yrics
here, the movement of [i] is original to Choreography 13, and it canbe evaluated as showing Plaintiff's personality, but it cannot be
evaluated that the movements of [ii] and [iii] show Plaintiff's
personality.

(C) Interludea.

Choreography 13 consists of the following movements which
can be largely divided into the following two parts, namely, [i] theleft arm is raised so as to create a space in the armpit, and while
keeping the elbow bent, the left hand, with the palm turned down
and the fingertips extended, is placed in front of the left chest, andas for the right arm, with the palm turned down and the fingertips
extended, it circles inwardly, starting from underneath the left palm
and going up, and is extended to the right side of the body with thearm bent lightly at the elbow, and [ii] the right arm is raised so as tocreate a space in the armpit, and while keeping the elbow bent, withthe palm turned down and fingertips extended, is placed in front of
the right chest, and as for the left hand, it is rotated inwardly,
starting from below the right palm and going up, and is extended to
the left side of the body with the arm bent lightly at the elbow.
Such movements are the same as the choreography indicated in
the lower left corner of Exhibit Ko 46 and in No. 2 of Exhibit Otsu
34, which is one of the choreographies corresponding to theinterlude (F (F) below) of the song (Maunaleo) corresponding toChoreography 17 (F below).

b.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the interlude here show Plaintiff's personality.

(D) Ulu 'ohi'ohi nā pua melia no Anianikū52

a.

"Ulu" means "to grow", "ohi" means "youth" or "healthy", "puamelia" means "plumeria flower", and "Anianikū" is a geographicalname (Exhibits Otsu 37, 54, the entire import of the oral argument),
and Plaintiff gives the translation, "lush plumeria flowers
blossoming in Anianikū".

b.

Choreography 13 consists of the following movements which
can be largely divided into the following four parts, namely, [i] withthe body turned to the right, the left arm is raised so as to create aspace in the armpit, and with the elbow bent, and with the palm
turned down and the fingertips extended, the left hand is placed in
front of the left chest, and as for the right arm, the palm of the righthand is turned down, with the fingertips extended, and with theelbow bent lightly, the right arm is extended to the right side on
shoulder height, and later, with the body once again turned to facefront, the right arm is bent lightly at the elbow, in line with the turn,and in that state, is extended to the front, with the palm turned up
and the fingertips pinched, and in doing so, the face and the eyes areturned to the direction of the extended right arm, and are shiftedfrom looking back to looking to the front, in line with the movementof the right arm, and [ii] with the right arm in the state of theimmediately preceding movement, the body is turned to the left, andthe left arm, with the palm down and the fingertips extended, islightly bent at the elbow, and is extended to the left side at shoulder
height, and later, with the body turned once again to face front, theleft arm is bent lightly at the elbow, in line with the turn, and in thatstate, is extended to the front, and as for the left hand, the palm isturned up and the fingertips are pinched, and in doing so, the face
and the eyes are turned to the direction of the extended left arm, andare shifted from looking back to looking to the front, in line with the
movement of the left arm, and [iii] the arms, which are extended to
the front of the body, are slowly raised to the head height
simultaneously by maintaining the state of the immediately
preceding movement of the palms joined together, and in doing so,
the face and the eyes are turned to the direction of both hands, andare shifted from looking front to looking upward, in line with the
movement of the hands, and [iv] with the palms facing front, the53

fingertips are extended, and both arms are slightly raised in such a
way as to create a space in the armpit, and are extended upward.
First, with regards to the movements of [i] and [ii], Plaintiff
asserts that they represent how the plumeria flowers are growing
thick in a large number.

However, the movements are the same as

the choreographies indicated in the lower left corner of Exhibit Ko
33 for "pua" (flower) (movement of [i] of E (G) below) of the lyrics,"Ka pua 'Awapuhi 'auli'i", which are the same as the lyrics here,
from among the lyrics for the song (Māpu Mau Ke' Ala)
corresponding to Choreography 16 (E below).

Given that the lyrics

here, along with the immediately following "pua melia", have themeaning of plumeria flowers growing thick and strong, the use of
the choreography for "pua" in this place is a movement that isassumable from the lyrics and from the theme.
Next, with regards to the movements of [iii] and [iv], Plaintiff
asserts that holding up both hands high represents the praise forbeautiful plumeria flowers, and that widely spreading out both
hands represents the place of Anianikū.

However, first of all, withregards to the movement of [iii], the dancer performs the handmotion for "pua", of pinching a hand and directing it upward to form
a bud-like shape, and raises the hand up at the same time, and the
movement is merely a slightly arranged version of the hand motion
for "pua".
Next, with regards to the movement of [iv], such movement is
not found in other choreographies of Exhibit Ko 51 as thechoreographies for the lyrics here.

However, considering that

Anianikū is a highland (the entire import of the oral argument), it
should be said that holding up both hands is a movement that isassumable from the lyrics, as is the case with the choreographies
which are indicated in the upper right corner and lower right cornerof Exhibit Ko 46 and in Exhibit Otsu 34-3, for "uka" (highland)(movement of [ii] in F (C) below) of the lyrics, "Kohu 'ahu'ao no kauka", of the song (Maunaleo) corresponding to Choreography 17 (Fbelow).
c.

Accordingly, of the choreographies corresponding to the lyrics
here, it cannot be said that movements of [i] to [iii] show Plaintiff's
54

personality.
(E) I ka mili 'ia e ka ua lanipili o Papakōleaa.

"Mili" means "to touch with the hand" or "to caress", "ua" means"rain", "lanipili" is a geographical name, and "Papakōlea" is ageographical name (Exhibit Otsu 37, the entire import of the oral
argument), and Plaintiff gives the translation, "entwined with therain of lanipili in Papakōlea".

b.

Choreography 13 consists of the following movements which
can be largely divided into the following three parts, namely, [i]both arms are bent lightly at the elbow, with the palms respectively
turned inward and the fingertips extended, and are extended to thefront at shoulder height, and while shaking the palms of both hands,
the palms of both hands are vertically crossed, with the right palmon top, followed by the left palm on top, [ii] the left arm is bent
lightly at the elbow, and with the palm of the left hand facing front
and the fingertips extended, is extended upward, and the right arm,with the palm of the right hand facing front and the fingertips
extended, is placed in the lower right corner of the left hand, andlater, the heights of both palms are reversed, and in doing so, thefingertips are shaken lightly, and the face and the eyes are shifted tolook to the direction of the palm which is raised high, and [iii] thebody makes a 180-degree turn clockwise, and is turned back, andlater, the palm of the right hand is turned inward, and as for the leftarm, it is bent lightly at the elbow, and with the palm of the left
hand turned up, the fingertips are extended lightly, and in that state,
the left arm is extended diagonally forward to the left at shoulder
height, and the body makes a 180-degree turn to the left and once
again faces front, and in doing so, the face and the eyes are turned tothe direction of the extended left arm, and are shifted diagonallyforward to the front left from the posture of looking back, in linewith the movement of the left arm.
First, with regards to the movement of [i], Plaintiff asserts thatthe movement of extending both hands to the front and reversing the
top and bottom positions of the left hand and the right hand
represents how two things come together and are entangled.
However, given that the hand motion for "mili" (to caress) consists
55

of joining both palms, with one on top of the other, and swaying
them (Exhibit Otsu 26), the movement of [i] is merely a minor
variation of the hand motion.
Next, with regards to the movement of [ii], Plaintiff asserts thatthe movement of extending both hands upward and reversing theheights of the hands represents the rain of lanipili.

Although thismovement is simple, it is not found in other examples as thechoreography for the lyrics here or for the same lyrics, including theother choreographies of Exhibit Ko 51, and is also different from thehand motion for "ua" (rain) (Exhibits Otsu 3, 4), of holding up both
hands and, with the fingertips fluttering, the hands being lowered
simultaneously, so that the movement is original to Choreography
13.
Next, with regards to the movement of [iii], Plaintiff asserts thatthe movements of returning to the posture of facing front from theposture of looking back, and extending the left arm represent theplace of Papakōlea.

However, given that the hand motion for"place" for the lyric of "Papakōlea" (geographical name) consists ofraising one hand and the other hand making a movement that starts
from the side of the raised hand, passing in front of the body, andspreading out horizontally (Exhibits Otsu 3, 5), and that the hands
make an L-shape as a result, the hand motion is the same as the
movement of [iii].

However, the movement of [iii] is such that, as

the dancer performs the hand motion for "place", the dancer makes a
180-degree turn and turns the back to the audience, and by making
another 180-degree turn, turns to the front.

The combination ofsuch big turns produces liveliness of the entire body, and thismovement is not found in other examples of Exhibit Ko 51.
Meanwhile, Defendant asserts that the choreographies indicated in
the lower left corner and lower right corner of Exhibit Ko 51 also
perform the hand motion for "place" while the body makes a turn.
However, since it cannot be acknowledged that the choreographies
indicated in the lower left corner and lower right corner of Exhibit
Ko 51 involve a turn, Defendant's assertion cannot be accepted.
c.

Accordingly, of the choreographies corresponding to the lyrics
here, it cannot be evaluated that the movement of [i] shows56

Plaintiff's personality, but since the movement of [ii] is original toChoreography 13, it can be evaluated that Plaintiff's personality isshown, and as for the movement of [iii], it can be evaluated that
Plaintiff's personality is further expressed to a certain degree.
(F) Ua lanipili i ka nani o Papakōlea, He nani uluwehi ke kui pua melia
The same as described in the above (A) and (B).
(G) I luna nānā Kalāwahinea.

"Luna" means "high" or "highland", "nānā" means "to see", and"Kalāwahine" is a geographical name (Exhibit Otsu 37, the entire
import of the oral argument), and Plaintiff gives the liberaltranslation, "on the top, I see Kalāwahine".

b.

Choreography 13 consists of the following movements which
can be largely divided into the following three parts, namely, [i]both arms are bent lightly at the elbow, with the palms turned down,
and are extended to the front in the area around the hip, and later,
with the wrists turned up, and the palms turned towards the body,
both arms are raised slightly so as to create a space in the armpit,
and are simultaneously extended to above the head, and in doing so,
the face and the eyes are shifted upward from the posture of looking
to the front, in line with the movement of the arms, and [ii] thefingertips of both palms are extended and directed to the front, andthe right arm is extended straight upward, and as for the left arm, it
is raised so as to create a space in the armpit, and is bent at the
elbow, with the palm placed by the left eye, and in doing so, theface and the eyes are turned to the direction which is pointed out by
the extended right arm, and later, the positions of the hands arereversed, with each hand performing the movement which waspreviously performed by the other hand, and [iii] the body makes a
90-degree turn to the right, and the right arm is extended straight
upward, and as for the left arm, it is raised so as to create a space inthe armpit, and is bent at the elbow, and with the palm turned down
and the fingertips extended, the left hand is placed in front of theleft chest, and later, the body makes another 90-degree turn to theright, and the positions of the hands are reversed twice, and the bodymakes yet another 90-degree turn to the right, and once again thepositions of the hands are reversed, and thus the body makes a turn57

with the arms alternately extended, and in doing so, the face and theeyes are turned to the direction which is pointed out by the extendedarm.
First, with regards to the movement of [i], Plaintiff asserts thatslowly raising both arms upward from below represents "what is up
there".

Although this movement is not found in other examples,

including the other choreographies of Exhibit Ko 51, and given thatraising both hands high is a natural movement for the meaning of"luna" (high), and since, with regards to "uka" (highland; Exhibit
Otsu 36) which has the same meaning, there is a similar example inwhich both hands are raised in the choreography indicated in theupper right corner and lower right corner of Exhibit Ko 46, and in
Exhibit Otsu 34-3, for "uka" (movement of [ii] in F (C) below) in
the lyrics, "Kohu 'ahu'ao no ka uka", which are the same as the
lyrics here, from among the lyrics for the song (Maunaleo)corresponding to Choreography 17, it is acknowledged that the
movement is assumable from the lyrics.
Next, with regards to the movement of [ii], Plaintiff asserts thatthe movements of extending one hand upward and placing the other
hand by the eye, and directing the eyes upward represent looking at
something.

However, given that the hand motion for "ike", which

has the same meaning as "nānā", of "to see", consists of holding up
both hands to the eyes, with the palm of one hand and the facelooking outward, and the other hand being extended (Exhibit Otsu3), and that the choreography indicated in the lower right corner of
Exhibit Ko 51 also involves the movement of extending one hand
upward and the other hand being placed by the eye, the movementof [ii] is such that these movements for "to see" are performed
merely by reversing the positions of the hands, and it cannot be said
that this constitutes a significant difference.
Next, the movement of [iii] is the same as the choreography
indicated in the lower right corner of Exhibit Ko 51 for "Papakōlea"(movement of [iv] in (A)), in the lyrics, "Ua lanipili i ka nani oPapakōlea", in the above (A), which are the same as the lyrics here.
Given that, like "Papakōlea", "Kalāwahine" is a geographical name,it is acknowledged that the movement is assumable from the lyrics
58here.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(H) He Anianikū me Pūowaina o Papakōleaa.

"Anianikū"isageographicalname,"Pūowaina"isageographical name, and "Papakōlea" is a geographical name (theentire import of the oral argument), and in Plaintiff's translation ofthese geographical names, the names are written in Japanesealongside the words written in letters.
b.

Choreography 13 consists of the following movements which
can be largely divided into the following three parts, namely, [i] thebody is turned to the left, and the arms are bent slightly at the elbow,
and with the palms turned down and the fingertips extended lightly,
are raised slightly so as to create a space in the armpit,
approximately to the height above the head, and later, with thepalms of both hands turned inward and joined together, the arms areraised above the head, and the face and the eyes are turned to thedirection of the arms, and [ii] the left arm is extended upward, withthe palm turned inward, and the right arm is bent lightly at the
elbow, and with the palm turned upward and the fingertips extended
lightly, is extended forward at shoulder height, and as the bodymakes a 90-degree turn to the right, the position of the right hand is
moved diagonally forward to the right, and in doing so, the face andthe eyes are turned to the direction of the right hand, and are shiftedto the right from the left, in line with the movement of the righthand, and [iii] both arms are bent lightly at the elbow, and with thepalms turned down and the fingertips extended lightly, are extended
forward at shoulder height, and in that state, the extended right hand
and right arm slowly make wavy motions, three times, and while
doing so, the body makes a 360-degree turn to the right, and face
and the eyes are turned to the direction of the extended right hand.
First, with regards to the movement of [i], Plaintiff asserts thatthe movements of turning the body sideways and the feet alternately
taking one step each while the arms are extended diagonally
downward and are then raised upward represent the place ofAnianikū.

However, the movement is the same as the hand motion
59for "mauna" (mountain) (positioning both hands at hip height in the
direction that is diagonally forward to the left, and shifting thehands diagonally upward to the right; Exhibit Otsu 5), whichpertains to the lyric of "Anianikū" (geographical name), a highland,
being performed with the body turned sideways, and the same
movement is also found in the choreography indicated in the lower
left corner of Exhibit Ko 51, in the place corresponding to thefollowing movement of [iii], as the direction of the body is shifted.
Next, with regards to the movement of [ii], Plaintiff asserts that
extending the right hand forward while turning the body to return tothe posture of facing front represents the place of Pūowaina.
However, the movement is such that merely the hand motion for"place", which is related to the lyric of "Pūowaina" (geographicalname), is performed while turning the direction of the body, and thesame movement is also found in the choreography indicated in thelower left corner of Exhibit Ko 51, in the place corresponding to thefollowing movement of [iii], by shifting the direction of the body.
Next, with regards to the movement of [iii], it is similar to acertain degree to the choreography indicated in the lower rightcorner of Exhibit Ko 51, for "Papakōlea" (movement of [iv] in (A))
of the lyrics, "Ua lanipili i ka nani o Papakōlea", in the above (A),which are the same as the lyrics here.

However, while in

Choreography 13, steps are taken to make a turn while the extended
arms make wavy motions, the choreography indicated in the lower
right corner of Exhibit Ko 51 is different in that the hands arealternately extended and the turn is made as a result of the bodyshifting the direction at the same time as the arms are extended.
Accordingly, the difference resulting from the combination thereofalso makes a difference to the movement of the entire body.
Meanwhile, Defendant asserts that the turn is merely a result of
existing steps having been combined, but as described above, suchassertion cannot be accepted.
c.

Accordingly, of the choreographies corresponding to the lyrics
here, it cannot be evaluated that the movements of [i] and [ii] show
Plaintiff's personality, but it can be evaluated that the movement of[iii] is significantly different from similar examples, so that it can be60

evaluated as showing Plaintiff's personality to a certain degree.
(I) Ua lanipili i ka nani o Papakōlea, He nani uluwehi ke kui pua melia; theinterlude
The same as described in above (A) and (B).
(J) Ke aloha i ka 'ohu, e Papakōleaa.

"Aloha" means "love", "ohu" means "fog", and "Papakōlea" is ageographical name (Exhibits Otsu 33, 36, the entire import of theoral argument), and Plaintiff gives the translation, "beloved fog of
Papakōlea".

b.

Choreography 13 consists of the following movements which
can be largely divided into the following three parts, namely, [i] theleft arm is raised so as to create a space in the armpit, and is bent at
the elbow, and with the palm turned down and the fingertips
extended, the left hand is placed in front of the left chest, and theright arm is raised so as to create a space in the armpit, and is bent
at the elbow, with the palm turned down and the fingertips extended,
and in that state, the right hand rotates once around the left palm,
and with the palm turned up, the right arm is bent lightly at the
elbow and is extended diagonally forward to the right, and in doing
so, the face and the eyes are turned to the direction of the right hand,and are shifted to the right from the left, in line with the movementof the right hand, and [ii] the palms of both hands are turned
towards the body, and with the fingers extended, the right hand isplaced on the right shoulder, and the left hand is placed in front of
the right shoulder, and later, the same movement is performed
symmetrically, and both hands are placed on the left shoulder, andin doing so, the face and the eyes are turned to the direction of theshoulder on which the hands are placed, and [iii] the body makes a
90-degree turn to the right, and the left arm, with the palm turned
down and the fingertips extended, is extended to the left of the bodyat shoulder height, and the right arm is raised so as to create a spacein the armpit, and is bent at the elbow, and with the palm turned
down and the fingertips extended, is placed in front of the rightchest, and in that state, both arms slowly make wavy motions, andthe face and the eyes are turned to the direction which is pointed out
by the extended left arm, and the body makes a 180-degree turn to61the right, and the right arm, with the palm turned down and thefingertips extended, is extended to the right of the body at shoulder
height, and the left arm is raised so as to create a space in the armpit,
and is bent at the elbow, and with the palm turned down and thefingertips extended, the left hand is placed in front of the left chest,
and in that state, both arms slowly make wavy motions, and the face
and the eyes are turned to the direction which is pointed out by theextended right arm.
First, with regards to the movement of [i], Plaintiff asserts thatrotating both hands in front of the chest represents the feelings oflove and respect.

However, such movement is the same as thechoreography indicated in the lower left corner of Exhibit Ko 51.
Next, with regards to the movement of [ii], Plaintiff asserts that
placing both hands on the shoulders represents how the misty rain
pouring down decorates the body beautifully.

However, thismovement is the same as when using both hands to perform the handmotion for "lei" (Exhibit Otsu 5), of shifting one hand from one
shoulder to the other shoulder.

Furthermore, given that another

hand motion for "lei" (Exhibit Otsu 4), of hanging a lei around theneck, is performed in the choreography of Exhibit Otsu 34-3 for"'ohu'ohu" (F (Q) below) of the lyrics, "'Ohu'ohu i ka Mālie", which
are the same as the lyrics here, of the song (Maunaleo)corresponding to Choreography 17 (F below), there is a similar
example of the performance, per se, of the movement of the handmotion for "lei" as a choreography for "'ohu", and the movement of[ii] is merely a slightly arranged version of such similar example.
Next, with regards to the movement of [iii], Plaintiff asserts thatturning the body sideways and extending the arms to the front
represents the place of Papakōlea.

However, this movement is notfound in other examples as a choreography for the lyrics here or forthe same lyrics, including the other choreographies of Exhibit Ko 51,
and is also different from the hand motion for "place" (Exhibit Otsu5), which is related to the lyric, "Papakōlea", and is also notnormally assumable from the meanings of the lyrics or from thetheme, so that it is acknowledged that the movement is original toChoreography 13.
62c.

Accordingly, of the choreographies corresponding to the lyrics
here, it cannot be acknowledged that the movements of [i] and [ii]show Plaintiff's personality, and since the movement of [iii] isoriginal to Choreography 13, it can be evaluated that the movementof [iii] shows Plaintiff's personality.

(K) 'O ka noe a ka ua lanipili o Papakōleaa.

"Noe" means "fog", "ua" means "rain", "lanipili" is ageographical name, and "Papakōlea" is a geographical name
(Exhibits Otsu 37, 54, the entire import of the oral argument), andPlaintiff gives the translation, "the misty rain of lanipili pouring on
Papakōlea".

b.

Choreography 13 consists of the following movements which
can be largely divided into the following two parts, namely, [i] theright arm is bent lightly at the elbow, and with the palm facing front
and the fingertips extended, is extended diagonally forward to theright, to a position slightly higher than the head, and from there toapproximately the hip height, the right arm is lowered as if to draw
the shape of the letter "S", and when doing so, the left arm, with thepalm turned inward, is lowered with the fingers extended lightly,
and the face and the eyes are turned to the direction of the righthand, and are moved down from above, in line with the movementof the right hand, and next, the right hand and the left hand arereversed, and as the left arm is bent lightly at the elbow, with thepalm facing front and the fingertips extended, the left arm isextended diagonally forward to the left to a position slightly higher
than the head, and from there to approximately the hip height, islowered as if to draw the shape of the letter "S", and when doing so,
the right arm, with the palm turned inward, is lowered with thefingertips extended lightly, and the face and the eyes are turned tothe direction of the left hand, and are shifted downward from theabove, in line with the movement of the left hand, and [ii] both arms
are bent lightly at the elbow, and with the palm turned down and thefingertips extended lightly, the arms are extended forward atshoulder height, and in that state, by slowly making wavy motions
with the extended right hand and right arm, three times, the bodymakes a 360-degree turn to the right, and the face and the eyes are
63

turned to the direction of the extended right hand.
First, with regards to the movement of [i], Plaintiff asserts thatalternately lowering both hands from above as they draw an S-shape
represents how the misty rain called "lanipili" is pouring.

However,

although the movement consists of the hand motion for "mist"(Exhibit Otsu 3), of raising both arms and lowering them as if todraw an S-shape, performed alternately by each hand, it is merely aslightly arranged version of an existing hand motion.
Next, with regards to the movement of [ii], Plaintiff asserts thatmaking a turn while extending both hands and making wavy
motions represents the beauty of the place of Papakōlea.

However,

this is the same movement as the movement of [iii] in the above (H),so that it is significantly different from similar examples.
Meanwhile, Defendant asserts that the movement consists of thehand motion for "aina" (earth), which is related to the lyric of"Papakōlea", performed with one hand.

However, since the handmotion for "aina" is such that the palms are turned to the ground andthe hands are spread out, from front to the right and left directions(Exhibits Otsu 3, 4), and is different from the movement of [ii],Defendant's assertion cannot be accepted.
c.

Accordingly, of the choreographies corresponding to the lyrics
here, it cannot be evaluated that the movement of [i] shows
Plaintiff's personality, and as for the movement of [ii], it can beevaluated that Plaintiff's personality is shown further, to a certain
degree.

(L) Ua lanipili i ka nani o Papakōlea, He nani uluwehi ke kui pua melia; theinterlude
The same as described above in (A) and (C).
(M)
a.

Hū ana ka mana'o, ha'i manawa"Mana'o" means "thought", and "ha'i manawa" means "to informtime" (Exhibit Otsu 37), and Plaintiff gives the translation, "I informyou of my thoughts".

b.

Choreography 13 consists of the following movements which
can be largely divided into the following three parts, namely, [i] thebody is turned sideways to the right, and the right arm, bent lightly
at the elbow, and with the palm turned down and the fingertips
64extended, is extended to the same direction as the direction of thebody, and the left arm is raised so as to create a space in the armpit,
and with the palm turned down and the fingertips extended, isplaced in front of the left chest, and with the form of the hand in thatstate, the body is turned to face front, and the extended right arm israised like the left arm so as to create a space in the armpit, and withthe palm turned down and the fingertips extended, is placed in frontof the right chest, and in doing so, the face and the eyes are turnedto the direction of the right hand, and are shifted, in line with the
movement of the right hand, and next, the body is turned sideways
to the left, and the left arm, bent lightly at the elbow, and with thepalm turned down and the fingertips extended, is extended to thesame direction as the direction of the body, and the right arm israised so as to create a space in the armpit, and with the palm turned
down and the fingertips extended, is placed in front of the rightchest, and with the form of the hand unchanged, the body is returnedto the direction of facing front, and the extended left arm is raised so
as to create a space in the armpit, and with the palm turned outward
and the fingertips extended, the fingertips are placed near the left
temple, and [ii] both palms are turned towards the body, and withthe fingers extended lightly, are placed in front of the mouth once,
are turned upward at shoulder height, in the direction that is
diagonally forward to the left, and both arms are slowly extended,with the face and the eyes directed towards the hands, and [iii] withthe palm turned down, the right arm is moved, from the directionthat is diagonally left, to the direction that is diagonally right, alongwith the turning of the body, and in doing so, the face and the eyes
are turned to the direction of the extended right hand, and are shiftedto the right from the left, in line with the movement of the right
hand.
First, with regards to the movement of [i], Plaintiff asserts thatalternately extending one hand and, at the end, placing the left handby the temple represents that the composer's thoughts are presented
in the song.

However, the hand motion for "mana'o" (thought)

consists of raising the right pointer finger and touching the forehead
with it (Exhibit Otsu 3), and if the part about placing the finger to65the area around the forehead is taken out, the same movement is also
found in the choreography indicated in the lower right corner of
Exhibit Ko 51.

As for other parts, it is believed that they consist of

the hand motion for "'oe" (you), of pointing at the other person, who
is right in front, with a finger or the palm of one hand (Exhibit Otsu3), and the hand motion for "au" (I), of turning the palm to thedancer's direction in front of the chest (Exhibit Otsu 3), repeatedalternately.

Since there is no other example of the movement as

the choreography for the lyrics here or for the same lyrics, including
the other choreographies of Exhibit Ko 51, and since the movement
is not normally assumable from the meaning of the lyric, "mana'o",and from the theme, the movement is original to Choreography 13.
Next, with regards to the movement of [ii], Plaintiff asserts thatslowly extending both arms forward from the position in front of themouth represents that a story is being told.

However, this is thesame movement as the hand motion for "ha'ina" (to speak), of
placing both hands to the mouth and extending them to the front in arelaxed manner. (Exhibit Otsu 5)

In light of the meaning of "ha'imanawa" (to inform time), it is acknowledged that the movement isassumable from the meaning of "ha'i", and the same movement,
performed with one hand, is also found in the choreography
indicated in the lower left corner of Exhibit Ko 51.
Furthermore, with regards to the movement of [iii], Plaintiff
asserts that extending both arms and bringing the right arm to theright from the left represents that a story is being told right at thismoment.

Although this movement is simple, it is not found inother examples as the choreography for the lyrics here or for thesame lyrics, including the other choreographies of Exhibit Ko 51,
and since the movement is not normally assumable from themeanings of the lyrics or from the theme, it is acknowledged that the
movement is original to Choreography 13.
c.

Accordingly, of the choreographies corresponding to the lyrics
here, the movements of [i] and [iii] are original to Choreography 13,
and it can be evaluated that Plaintiff's personality is shown, but it
cannot be evaluated that the movement of [ii] shows Plaintiff's
personality.
66

(N) Ha' ina 'ia mai o ku' u mele o Papakōleaa.

"Ha' ina" means "to talk", "mai" means "to come" or "pleasecome this way", "ku' u" means "my", and "mele" means "song"(Exhibits Otsu 33, 37, 54, the entire import of the oral argument),
and Plaintiff gives the liberal translation, "my song to Papakōlea".

b.

Choreography 13 consists of the following movements which
can be largely divided into the following three parts, namely, [i] thebody is turned diagonally forward to the left, and the left arm isextended upward with the palm turned inward and the fingers
extended, and the right arm is placed in front of the mouth with thepalm turned inward and the fingers extended, and later, the righthand, with the palm turned up, is extended to the front at shoulder
height, and is shifted diagonally forward to the right from theposition that is diagonally forward to the left, and in doing so, thebody is simultaneously shifted diagonally forward to the right fromthe position that is diagonally forward to the left, and the face andthe eyes are turned to the direction of the right hand, and are shiftedto the right from the left in line with the movement of the right hand,and [ii] the left arm is raised so as to create a space in the armpit,
and with the elbow bent, and with the palm turned down and thefingertips extended, the left hand is placed in front of the left chest,
and the right arm is extended upward with the elbow bent, and withthe palm turned down and the fingertips extended, is brought toabove the head from the position around the front of the face,passing the back of the neck, and is brought to the front of the rightchest to be positioned there, and [iii] with the elbows bent lightly
and with the palms turned down and the fingertips extended lightly,
the arms are extended forward at shoulder height, and in that state,
the extended right hand and right arm slowly make wavy motions,
three times, and the body makes a 360-degree turn to the right, andthe face and the eyes are turned to the direction of the extended right
hand.
Frist, with regards to the movement of [i], Plaintiff asserts that
extending an arm forward and bringing it to the right from the left,
after the hand is placed in front of the mouth, represents that one's
own story is being told in the song.
67

However, the choreographyindicated in the lower left corner of Exhibit Ko 51 is the same as the
movement of [i], of extending the left hand upward, and after
placing the right hand to the mouth once, extending the right hand to
the front.

Naturally, the choreography indicated in the lower left

corner of Exhibit Ko 51 is different in that the movement is not
performed as the direction of the body is shifted diagonally forward
to the right from the position that is diagonally forward to the left,
but since the angle of rotation is not big in Choreography 13, either,
the arrangement is only minor, and cannot be considered asignificant difference.
Next, with regards to the movement of [ii], Plaintiff asserts thatthe movement of hanging a lei over the shoulders represents themessage of "this is my lei of aloha".

Since there is no example inwhich such movement as the hand motion for "lei" (Exhibit Otsu 4)
is performed in the lyrics here or in the same lyrics, including theother choreographies of Exhibit Ko 51, and since the hand motion
for "lei" is not normally assumable from the meanings of the lyrics
here or from the theme, it is acknowledged that the movement isoriginal to Choreography 13.

Meanwhile, Defendant asserts that

Plaintiff, based on the interpretation that the lyrics in this place referto "lei", merely applied the existing and typical hand motion for"lei", and that since interpretation is merely an idea that is notprotected by the Copyright Act, the choreography in which theabove hand motion is applied based on said interpretation is not
original.

However, as described in (1) E, such interpretation

cannot be accepted, and as described above, it is acknowledged that
Plaintiff's personality is shown in the choreography here.
Next, with regards to the movement of [iii], Plaintiff asserts thatmaking a turn as the hands are extended forward and make wavy
motions represents the feelings for Papakōlea, which is thecomposer's hometown, and the beauty of the place.

Since themovement is the same as the movement of [iii] in the above (H),there is a significant difference from similar examples.
c.

Accordingly, of the choreographies corresponding to the lyrics
here, it cannot be evaluated that the movement of [i] shows
Plaintiff's personality, but since the movement of [ii] is original to68

Choreography 13, it can be evaluated as showing Plaintiff's
personality, and as for the movement of [iii], since it is significantly
different from similar examples, it can be evaluated that the
movement shows Plaintiff's personality further, to a certain degree.
(O) Ua lanipili i ka nani o Papakōlea, He nani uluwehi ke kui pua melia, Ua
lanipili i ka nani o Papakōlea, He nani uluwehi ke kui pua melia
The same as described above in (A) and (B).
(P) Summary
As described above, there are more than a few choreographies thatare completely original to Choreography 13 ((A) [ii], (B) [i], (E) [ii], (J)[iii], (M) [i] and [iii], (N) [ii] [and (F), (I), (L), and (O)]), andfurthermore, some of the arrangements are significantly different fromother choreographies ((E) [iii], (H) [iii], (K) [ii], and (N) [iii]), andwhen seen as a whole, it can be said sufficiently that Plaintiff's
personality is shown.
D. Choreography 15 (Song: Blossom nani ho'i e)(A) He blossom nani ho'i e (before intro)a.

Choreography 15 consists of the movement of standing up withthe body turned to face front.

Given that the scene is at the start ofthe song to be immediately followed by the intro, it should be said
that the movement of not starting the choreography for the lyrics
and being still with the body facing front is commonplace.
Plaintiff, too, explains that this is where the dancer is waiting before
starting the dance, and the same movement, performed after lightly
making a bow, is also found in Exhibit Otsu 32-3 (in the lower left
corner of Exhibit Ko 41; since Exhibit Otsu 32 contains all otherchoreographies indicated in Exhibit Ko 41, reference shall be madehereinafter only to Exhibit Otsu 32).
b.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(B) Introa.

Choreography 15 consists of the movements in which the rightarm is raised so as to create a space in the armpit, and the right hand,with the palm turned down and the fingers lined up and extended, isplaced in front of the right chest, and the left arm is lightly bent at
the elbow, and with the fingers bent, the left hand is placed by the69

hip, and next, the arms are reversed, and the left arm is raised so as
to create a space in the armpit, and the left hand, with the palm
turned down and the fingers lined up and extended, is placed in frontof the left chest, and the right arm is lightly bent at the elbow, andwith the fingers bent, the right hand is placed by the right hip.
Such movement is the same as the movement of the choreography
indicated in Exhibit Otsu 32-1.
b.

Accordingly, since the choreographies corresponding to the intro
here are found in a similar example, it cannot be evaluated that
Plaintiff's personality is shown.

(C) Ka'ala, ka mauna Ku kilakilaa.

"Ka'ala, ka mauna" means "mountain of Ka'ala" (name of amountain), and "kilakila" means "magnificent" or "majestic"(Exhibit Otsu 54, the entire import of the oral argument), andPlaintiff gives the liberal translation, "the majestic mountain ofKa'ala looms".

b.

Choreography 15 consists of the following movements which
can be largely divided into the following two parts, namely, [i] thebody is turned sideways to the right, and the left arm is extended
straight upward, and as for the left hand, the palm is turned to thefront and the fingertips are lined up and extended, and the right arm
is raised so as to create a space in the armpit, and is bent at the
elbow, and the right hand, with the palm facing front and thefingertips extended, is placed on the right side of the face, and theface and the eyes are turned to the direction of the left hand which isextended upward, and the steps are taken alternately, with two steps
each, to move backward, and later, the body makes a turn clockwise,
and is turned sideways to the left, and the right arm is extended
straight upward, with the palm facing front and the fingertips lined
up and extended, and the left arm is raised so as to create a space inthe armpit, and is bent at the elbow, and the left hand, with the palm
facing front and the fingertips extended, is placed on the left side of
the face, and [ii] with the right arm in the same state, the left arm israised so as to create a space in the armpit, and is bent at the elbow,
and is placed in front of the body and is kept level to the ground,and the left hand, with the palm turned down and the fingers lined70

up and extended, is placed in front of the left chest, and next, theleft arm is extended straight upward, and the palm of the left hand isturned to the front and the fingertips are lined up and extended, andthe right arm is raised so as to create a space in the armpit, and isbent at the elbow, and is placed in front of the body and is kept levelto the ground, and the right hand, with the palm turned down and thefingers lined up and extended, is placed in front of the right chest,
and the arms are reversed from their positions in the immediately
preceding movement.
First, with regards to the movement of [i], Plaintiff asserts thatas the dancer holds up the left hand high and the face and the eyes
are turned to that direction, the movement represents the mountainof Ka'ala.

This movement consists of the hand motion for "mauna"(Exhibit Otsu 4), of holding up both hands, being performed while
the body makes a turn.

Although other choreographies, including

the other choreographies of Exhibit Ko 41, are not such that thedancer performs the hand motion for "mauna" while making a turn,since the dancer takes steps in line with the fast-paced song and also
makes a big movement with the body, it cannot be acknowledgedthat the presence or lack of a turn here produces a significant
differenceemphasizes

to

the

that

impression
thegiven.

movementisMeanwhile,different

Plaintiff

from

other

choreographies, but as described above, it cannot be said that thedifference is significant on the basis of this aspect.
Next, with regards to the movement of [ii], Plaintiff asserts that
extending the arms straight up represents that the mountain of Ka'ala
is very high and is looming.

However, given that the hand motion

for "kilakila" consists of extending one hand upward while bending
the other hand at the elbow (Exhibit Otsu 26), it is acknowledgedthat the same movement is merely performed twice.
c.

Accordingly, it cannot be evaluated that the choreography forthe lyrics here shows Plaintiff's personality.

(D) Ua noho i ka malu i ka uluwehiwehi
a.

"Ua" means "rain", "noho" means "to live" or "to stay", "malu"means "in the shade", and "uluwehiwehi" means "lush" (Exhibit
Otsu 54, the entire import of the oral argument), and Plaintiff gives
71the translation, "blossoming in the shade of lush greenery".
b.

Choreography 15 consists of the following movements which
can be largely divided into the following two parts, namely, [i]while the right arm is kept in the same state as the immediately
preceding movement, the face and the eyes are slightly turned
diagonally downward to the right, and at the same time, the left arm
is extended upward, with the elbow bent lightly, and the left hand,with the palm turned down, is placed on the head, and [ii] the bodyis turned sideways to the left, and the arms are simultaneously
moved to the front from the outer side of the body, and as the palmsof both hands are turned up in front of the body (around the front of
the chest), the arms make a movement as if to scoop up water, andlater, as the direction of the body is returned to face front, both arms
are raised simultaneously, and after the body is turned to face front,
the arms are bent lightly at the elbow, and in a movement as if tohold something above the head, the palms of both hands are turned
inward and are raised to the head height.
First, with regards to the movement of [i], Plaintiff asserts thatholding up the left hand above the head represents being in theshade of a tree.

However, the same movement is also found in thechoreography of Exhibit Otsu 32-1, following the shaking of thebody, with the face kept turned to face front.

The difference in thelength of the movement and in the direction of the face is minor, andit cannot be acknowledged as creating a significant difference.
Next, with regards to the movement of [ii], Plaintiff asserts thatusing both arms to indicate thickly growing trees around the chest
and above the head represents the forest growing tall and thick.
However, the same movement of scooping up water with both hands
is also found in the choreographies of Exhibits Otsu 32-3 and 32-4,
and the choreography of Exhibit Otsu 32-4 is also the same in thatthe arms are raised at the same time.

Regarding the latter, thedifference is that the movement is performed while turning the body,but since in this place, the choreography of Exhibit Otsu 32 is suchthat the steps are taken in line with the fast-paced song, and the
movement involved is also big, the change in the direction of the
body at this place is merely a slightly changed version of the similar72

example with the same basic elements, so that it cannot be said thatthe difference is significant.

Meanwhile, Plaintiff emphasizes thatthe movement is different from other choreographies, but in light of
the above, Plaintiff's assertion cannot be accepted.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(E) He blossom nani ho'i ea.

"Blossom" is an English word meaning "flower", "nani" means"beautiful", and "ho'i" means "please come" or "please come thisway" (Exhibits Otsu 3, 54), and Plaintiff gives the liberal translation,"the beauty of the blossoms (flowers) is reborn".

b.

Choreography 15 consists of the following movements which
can be largely divided into the following two parts, namely, [i] thebody is turned sideways to the right, and the right arm is extended
straight to the back side, and with the fingertips of the right handpinched and directed upward, the body is turned sideways to the left,
and the right arm is extended straight to the front (the direction to
the right of the body which is turned sideways to the left), and theleft arm is raised so as to create a space in the armpit, and is bent at
the elbow, and the palm of the left hand is directed upward, with thefingers extended, and is placed in front of the left chest, and [ii]with the body turned in the same direction and both arms in thesame state, a motion of "shake" (making a wavy motion with both
hands and arms as if to invite someone) is performed, and then as
the body is turned to face front, the arms are raised as if to create aspace in the armpit, and are bent at the elbow, and the hands, withthe palms directed to the dancer's own body and with the fingers
extended, are placed in front of the chest (the palm of the right handin front of the right chest, the palm of the left hand in front of theleft chest).
Regarding these choreographies, Plaintiff asserts that the flower
is represented by the right hand, and bringing the flower from backto the front, and to the front of the "poli" ("heart" in the emotional
sense) or the chest represents how the beautiful memories of the
grandmother, told by the grandmother herself, continue to live
forever.
73

First, with regards to the movement of [i], the pinching of
fingertips and directing them upward is the hand motion for "pua"(flower) (Exhibit Otsu 4).

While the movement of [i] is performedby changing the direction of the body and reversing the right withthe left, the same movement is also found in the choreography
indicated in the lower left corner of Exhibit Ko 33 for "Ka pua"
(movement of [i] in E (G)) of "Ka pua 'Awapuhi 'auli'i", which are
the same as the lyrics for the song (Māpu Mau Ke' Ala)
corresponding to Choreography 16 (E below).

Given that themeaning for "blossom" is the same as the meaning for "pua", it isacknowledged that the movement of [i] is assumable from the lyrics
and is found in a similar example.
Next, with regards to the movement of [ii], the use of both handto beckon someone is the same as the hand motion for "ho'i" (pleasecome), of turning palms upward and using both hands to beckon
someone (Exhibits Otsu 3 to 5), and the placement of both hands infront of the chest is the hand motion for "au" (I), but since "ho'i"means "please come", making the hand motion for "I", to whom the"ho'i" is directed, is not unrelated to the lyrics, and the same
movement is also found in the choreography of Exhibit Otsu 32-4.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(F) Ho'olana i ka maliea.

"Ho'olana" means "to float" or "to drift", and "malie" means"silence" (the entire import of the oral argument), and Plaintiff gives
the translation, "drifting in the silence".

b.

Choreography 15 consists of the following movements which
can be largely divided into the following two parts, namely, [i] withboth arms raised so as to create a space in the armpit, and with theelbows bent, the hands, with the palms turned inward and thefingertips extended, are placed on both cheeks of the smiling face,
and the palms of both hands are turned over to face front, and [ii]both arms are extended straight down, in the front of the body, tothe area around the front of the hip, and the palms of both hands areturned down and the fingertips are extended, and later, with the armsin the same state, the body makes a 360-degree turn to the left.
74

First, with regards to the movement of [i], Plaintiff asserts that
this movement represents how blossoms are loved by everyone andare happy.

However, this movement is the same as the handmotion for "pāpālina" (to smile) (Exhibit Otsu 3), which is notderived from the lyrics.

Accordingly, it cannot be said that thismovement is a hand motion that is assumable from the lyrics, andsince there is no other similar example for the same lyrics, including
the other choreographies of Exhibit Ko 41, it is acknowledged thatthe movement is original to Choreography 15.

Meanwhile,

Defendant asserts that Plaintiff merely interpreted the lyric in thisplace as "happy", and on that basis, applied the existing and typical
hand motion for "smile", and that since an interpretation is an ideathat is not protected by the Copyright Act, there is no originality to
the choreography which is merely such that the aforementioned
hand motion is applied based on said interpretation.

However, as

described above in (1) E, this assertion by Defendant cannot be
accepted.
Next, with regards to the movement of [ii], Plaintiff asserts that
extending both arms downward and making a turn represents thatblossoms (flowers) are in the state of silence.

Incidentally, thehand motion for "malie" consists of spreading both hands downward(Exhibit Otsu 26), and is also found in the choreography of Exhibit
Otsu 32-1 and 32-3, so that the movement of [ii] is different fromthe hand motion merely in that a turn is performed at the same time.
However, given that the meaning for "malie" is "silence", making a
big movement like a turn is not assumable from the lyrics, and since,even in the other choreographies of Exhibit Otsu 32, the movement
is such that only the direction of the body is changed, it isacknowledged that the performance of a turn in this place is asignificant difference.

Also, while Choreography 15 is such thatthe performance of the movement of [i] is followed by theperformance of a different movement, or the movement of [ii], thechoreography of Exhibit Otsu 32-1 and 32-3 is such that the
movement for "malie", of continuously extending both hands
downward, is performed.

When the change in movement is also

taken into consideration, it should be said that Choreography 15 is75

significantly different from other choreographies.
c.

Accordingly, since the choreographies corresponding to the
lyrics here are original to Choreography 15, it can be evaluated that
Plaintiff's personality is shown.

(G) Interlude
The same as described above in (B).
(H) Ka'ala, ka mauna Ku kilakila, Ua noho i ka malu i ka uluwehiwehi, He
blossom nani ho'i e, Ho'olana i ka malie
The same as described in the above (C) and (F).
(I) Interludea.

Choreography 15 consists of the following movement in which
the body is turned to face front, and with the palm of the right handturned down and the fingertips extended, the right arm is extended
to the right, and the left arm is raised so as to create a space in thearmpit and is bent at the elbow, and with the palm of the left handturned down and the fingertips extended, the left hand is placed in
front of the left chest, and with both arms extended, the palms ofboth hands make a "shake" motion (a wavy motion) once, and thenwith the left arm in the same state, the right arm is raised so as tocreate a space in the armpit, and with the elbow bent, the right handis placed in front of the right chest, and meanwhile, both palms
make fists in front of the chest, and making a movement as if to tie astring, both hands are pulled to the outer side of the body (right andleft) once, and next, with the palm of the left hand turned down andthe fingertips extended, the left arm is extended to the left, and theright arm is raised so as to create a space in the armpit and is bent at
the elbow, and the right hand, with the palm turned down and thefingertips extended, is placed in front of the right chest, and with theright arm in the same state, the left arm is raised so as to create aspace in the armpit and is bent at the elbow, and the left hand isplaced in front of the left chest, and meanwhile, both hands makefists at the same time in front of the chest, and by making a
movement as if to tie a string, both hands are pulled to the outer sideof the body (right and left) once.
This movement is the same as the hand motion for the interlude(Exhibit Otsu 5), and is also the same as the other choreographies of76

Exhibit Otsu 32.

However, the movement of jutting out both

elbows to the outer side by making a movement as if to tie a string
is not used for the interlude anywhere else, including other songs.
Furthermore, considering that the aforementioned hand motion for
the interlude gives an elegant and static impression, it cannot bedenied that inserting a movement that is brisk and dynamic as
described above, although for just a moment, in between creates asignificant difference to the impression given by the movement.
Meanwhile, Defendant asserts that the jutting out of both elbows to
the outer side is the same as the existing hand motion for "lino" (totie) (Exhibit Otsu 4), but since the act per se of making such handmotion in a scene of the interlude is a significant difference that is
not found in other examples, Defendant's assertion cannot be
accepted.
b.

Accordingly, since the choreography for the interlude here
resulted from adding a significant arrangement to a similar example,
it can be evaluated as showing Plaintiff's personality.

(J) Wahiawa, e 'ike 'ia Leilehuaa.

"Wahiawa" is a geographical name, "ike" means "to see", and"Leilehua" is a geographical name (the entire import of the oral
argument, Exhibit Otsu 54), and Plaintiff gives the translation, "lookat Leilehua of Wahiawa".

b.

Choreography 15 consists of the following movements which
can be largely divided into the following three parts, namely, [i]with the palm of the left hand turned up, and the fingertips extended,
the left arm is extended straight, diagonally forward to the left, andat the same time, with the palm of the right hand turned down andthe fingertips extended, the right hand is extended straight forward
to the left, and the palm of the right hand is placed on the palm of
the left hand, and later, with the left arm in the same state, fingers of
the left hand are slightly extended upward, and the palm of the righthand is turned inward, and the right arm, kept extended, is extended
straight upward, and [ii] with the left arm extended straight,
diagonally forward to the left, the palm of the left hand is turned
down, and at the same time, the right hand is lowered by bending
the right elbow, and with the palm turned down and the fingertips
77

extended, the right hand is placed by the right eye, and later, as theright arm is extended diagonally forward to the right, the fingertipsof the right hand are extended and the palm is turned down, and theleft arm is raised so as to create a space in the armpit, and is bent at
the elbow, and with the fingertips extended and directed downward,
the left hand is placed by the left eye, and [iii] with the palm of theleft hand facing front and the fingers extended and lined up, the left
arm is extended straight, diagonally upward to the front, and thepalm of the right hand is turned to the front and the fingers areextended and lined up, and the right arm is bent at the elbow without
being raised so as to create a space in the armpit, and the palm of
the right hand is placed in the lower right of the palm of the left
hand.

With the arms and hands in the same state, the body makes a

360-degree turn to the left.
First, with regards to the movement of [i], Plaintiff asserts thatthe movement represents the beauty and expanse of the land of
Wahiawa.

However, since the movement is the same as the handmotion for "place" (Exhibit Otsu 5), of extending one hand upward
and the other hand forward, and given that "Wahiawa" is ageographical name, it is acknowledged that the movement isassumable from the lyrics.
Next, with regards to the movement of [ii], Plaintiff asserts thatthe movement represents looking at Leilehua of Wahiawa.
However, it is acknowledged that the movement is such that merely
the hand motion for "ike" (Exhibit Otsu 4), of placing one hand by
the eyes, is performed alternately with each hand.
Next, with regards to the movement of [iii], Plaintiff asserts thatthe movement represents the expanse of the land of Leilehua.
However, the movement consists of the hand motion for "mauna"(mountain) (Exhibit Otsu 4), of holding both hands up, being
performed as the body makes a turn.

While the otherchoreographies, including the other choreographies of Exhibit Ko 41,
are not such that the hand motion for "mauna" is performed while
the body makes a turn, since steps are taken in line with the fast paced song and the body movement is also big, it cannot be
acknowledged that the presence or lack of a turn produces a78

significant difference.

Meanwhile, Plaintiff emphasizes on thepresence or lack of a turn, but since, with regards to this place, there
is no significant difference to the impression given, Plaintiff's
assertion cannot be accepted.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(K) I wili 'ia me ka lei kaulanaa.

According to a dictionary, "wili" means "to wind or turn (ascrew, clock, etc.)", but the meaning here is "to tie or to knit", and"lei" means "wreath" (worn on the head or around the neck)", afigurative expression for "beloved child/wife/husband/lover/younger
brother/younger sister" (Exhibit Otsu 33, the entire import of theoral argument), and Plaintiff gives the liberal translation, "tiedtogether like a famous lei".

b.

Choreography 15 consists of the following movements which
can be largely divided into the following two parts, namely, [i] withboth arms in the state of the immediately preceding movement, thearms are bent at the elbow, and as the fingertips of both hands areextended and the palms are turned inward, the hands are crossed in
front of the face and above the head, two times, and the hands arebrought above the head from the position in front of the face, andboth arms are extended straight upward, and [ii] with both arms
extended straight up above the head, the fingertips of both hands arejoined together, and later, with the arms raised so as to create aspace in the armpit, the elbows are bent, and both hands are
simultaneously lowered to behind the head, and in the same flow,
the hands, from the position behind the head, pass the front of bothshoulders, and are lowered further simultaneously, and the arms areraised so as to create a space in the armpit, and with the elbows bent,
the palms of both hands are turned down and the fingers areextended, and the fingertips are lined up in front of the chest (theright hand in front of the right chest, and the left hand in front of theleft chest).
Regarding these choreographies, Plaintiff asserts that the
movements of crossing the hands and extending them upward, and79lowering them from behind the head to pass the front of theshoulders, represent that Wahiawa and Leilehua are both wellknown places, and that the memories of them are tied together like alei.

However, first, with regards to the movement of [i], themovement is the same as the choreography of Exhibit Otsu 32-4 inthat both arms are crossed in front of the chest, and it cannot be said
that the difference of extending the hands upward or not creates asignificant difference.

Meanwhile, Plaintiff emphasizes thedifference in the manner in which the hands, which will be crossed,
are extended, but in light of what is described above, Plaintiff's
assertion cannot be accepted.
Also, with regards to the movement of [ii], the hand motion for"lei" (Exhibit Otsu 4), of hanging a lei around the neck, is
performed with both hands, and it is the same as the choreographyof Exhibit Otsu 32-3.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(L) He blossom neni ho'i e, Ho'olana i ka malie; the interlude
The same as described in the above (E) to (G).
(M)

Wahiawa, e 'ike 'ia Leilehua, I wili 'ia me ka lei kaulana, He

blossom neni ho'i e, Ho'olana i ka malie; the interlude
The same as described in the above (J) and (K), and (E) and (F), and(I).
(N) Pu'uloa o ka i'a hamau leoa.

"Pu'uloa" is a geographical name (old name for Pearl Harbor),and "o ka i'a hamau leo" means "quiet fish" (the entire import of theoral argument), and Plaintiff gives the translation, "Pu'uloa, quiet
fish".

b.

Choreography 15 consists of the following movements which
can be largely divided into the following three parts, namely, [i] thebody is turned slightly diagonally forward to the right, and thefingers of the left hand are extended and directed downward, and theleft arm is extended straight, diagonally to the left, and at the sametime, the fingertips of the right hand are extended and directed
downward, and the right arm is extended straight, diagonally to theleft, in such a way as to accompany the left arm, and next, with the80

body turned diagonally forward to the right, the right arm is raisedso as to create a space in the armpit, and is bent at the elbow, and is
moved backward as if to trace the front of the chest, and is extended
straight to the right side of the body (diagonally backward to theright), and in doing so, the right hand, with the fingertips extended
and kept directed downward, the direction of the face and the eyes isshifted to the back from looking to the front as if to look at the righthand, and [ii] with the direction of the body and the state of the rightarm maintained, the direction of the face and the eyes is turned to
the left hand, and with the left arm extended, the palm of the left
arm makes a big motion of "shake" (wavy motion) once, from down
to up, and [iii] with the direction of the body and the right arm still
kept in the same state, the left arm is raised so as to create a space inthe armpit, and is bent at the elbow, and by raising the pointer fingerof the left hand and placing it in front of the mouth, the left arm isonce again extended straight, diagonally forward to the left, and at
the same time as the left arm is extended, the right arm is raised so
as to create a space in the armpit, and is bent at the elbow, and withthe fingertips extended and the palm turned down, the right hand isplaced by the right side of the mouth.
First, with regards to the movement of [i], Plaintiff asserts thatmoving the right arm from front to back and extending the right arm
straight represents the expanse of the land of Pu'uloa.

However,

this movement is not found in other choreographies for similar
lyrics, including the other choreographies of Exhibit Otsu 32 in thisplace, and is also different from the hand motion for "place"pertaining to the lyric of Pu'uloa (geographical name), and is not a
movement that is normally assumable from the meaning of"Pu'uloa" or from the theme.

Accordingly, it is acknowledged thatthe movement is original to Choreography 15.

Meanwhile,

Defendant asserts that the movement is the same as thechoreography of Exhibit Otsu 32-1, but since Choreography 15, in
which the left hand is put forward and the right hand is moved fromthe front to the back, and the choreography of Exhibit Otsu 32-1, in
which the movement of opening up both hands and lowering them isrepeated, are clearly different in movement, Defendant's assertion81

cannot be accepted.
Next, with regards to the movement of [ii], there is no otherexample of use of the same as a choreography for the same lyrics inthis place, including the other choreographies of Exhibit Otsu 32,
and the movement is also not normally assumable from themeanings of the lyrics or from the theme.

Accordingly, it isacknowledged that the movement is original to Choreography 15.
Next, with regards to the movement of [iii], Plaintiff asserts that
placing the pointer finger, which is raised, to the mouth, represents
silence as well as the land of Pu'uloa being peaceful and quiet, andthat by moving the hand forward from the position of being placed
to the mouth, it means "to call out to someone" or "speaking voice",and these series of choreographies represent that Pu'uloa is a quiet
place.

However, the choreographies of Exhibit Otsu 32-1, 32-4,

and 32-5 involve the movement of placing the pointer finger, whichis raised, to the mouth, and this is a movement indicating "quiet" ingeneral, not just in hula dance.

Also, the choreography of Exhibit

Otsu 32-1 also involves the movement of moving forward the hand,which is placed to the mouth.

The movement of [iii] is different inthat these movements are performed by reversing the right and theleft hand, and in the position of the hand, which is not placed to themouth, but these differences are based on the movement which isalso found in Exhibit Otsu 32 and other choreographies, with slightarrangements made thereto, and it cannot be said that thesedifferences are significant.
c.

Accordingly, of the choreographies corresponding to the lyrics
here, it can be evaluated that the movements of [i] and [ii] show
Plaintiff's personality, but it cannot be evaluated that the movementof [iii] shows Plaintiff's personality.

(O) A me ka momi a ho'ohenohenoa.

"Momi" means "pearl", and "ho'ohenoheno" means "to beaffectionate" or "to love" (Exhibit Otsu 54, the entire import of theoral argument), and Plaintiff gives the translation, "pearl that ischerished".

b.

Choreography 15 consists of the movements in which, as the
body is turned diagonally forward to the left, the arms are kept down82

so as not to create a space in the armpit, and are bent at the elbow at
the same time, and the hands, with the palms turned inward and thefingers extended, are crossed in front of the chest, and with botharms bent at the elbow, and as if to stroke the arms and with thehands making the motion of "shake" (moving up and down in awavy motion), the right hand strokes down the upper part of the leftarm, and the left hand simultaneously strokes down the upper part of
the right arm, and in the continuing flow from the immediately
preceding movement, the body is turned diagonally forward to theright, and with the palms of both hands turned inward, the arms arebent at the elbow and are crossed in front of the chest, and in thatstate, as if to stroke the arms with both hands and with the hands
making the motion of "shake" (moving up and down in a wavy
motion), the right hand strokes up, and then down, the upper part ofthe left arm, and the left hand simultaneously strokes up, and thendown, the upper part of the right arm.
Regarding the movement here, Plaintiff asserts that "momi",
which means "pearl", is used as a figure of speech for "blossom"(flower), and that the movement of crossing the hands in front of thechest represents the big love for the flower and that the love will bevalued and embraced forever.

However, the crossing of both handsin front of the chest is the hand motion for "aloha", which, like"ho'ohenoheno", means "love" (Exhibit Otsu 4), and the same
movement is also found in the choreography of Exhibit Otsu 32-3.
The movement here is different in that the movement is performed
two times by reversing the direction of the body, but such difference
concerns the meanings of lyrics or is within the scope of a minor
variation of the movement found in Exhibit Otsu 32-3, and it should
be said that no significant difference is created.

Meanwhile,

Plaintiff emphasizes the difference in the direction to which the
body is turned, but in light of what is described above, suchassertion cannot be accepted.
c.

Accordingly, it cannot be evaluated that Plaintiff's personality isshown in the choreographies corresponding to the lyrics here.

(P) He blossom neni ho'i e, Ho'olana i ka malie; the interlude
The same as described in the above (E) to (G).
83

(Q) Pu'uloa o ka i'a hamau leo, A me ka momi a ho'ohenoheno, He blossom
neni ho'i e, Ho'olana i ka malie; the interlude
The same as described in the above (N) and (O), (E) and (F), and (I).
(R) Ha'ina mai ana ka puanaa.

"Ha'ina mai ana ka puana" means "to inform of a simple refrain"(Exhibit Otsu 33), and it is acknowledged that, as per Plaintiff'stranslation, this expression can be liberally translated as "the talkhas reached an end" (the entire import of the oral argument).

b.

Choreography 15 consists of the following movements which
can be largely divided into the following three parts, namely, [i]with the palm of the left hand turned inward and the fingertips
extended and lined up, the left arm is extended straight upward, andthe right arm is raised so as to create a space in the armpit, and isbent at the elbow, and the right hand, with the palm turned down
and the fingertips extended, is placed in front of the mouth once,
and then as the right hand makes a wavy motion once, the right arm
is extended straight, diagonally forward to the right, and [ii] withthe palm of the right hand turned inward and the fingertips extended
and lined up, the right arm is extended straight upward, and the left
arm is raised so as to create a space in the armpit, and is bent at the
elbow, and the left hand, with the palm turned down and thefingertips extended, is placed in front of the mouth once, and then as
the left hand makes a wavy motion once, the left hand is extended
straight, diagonally forward to the left, and [iii] both arms are raisedslightly so as to create a space in the armpit, and are bent at the
elbow, and with the fingertips extended and the palm turned inward,
the hands are simultaneously brought to the front of the chest, andwith the palms turned inward, the tips of both hands are placed tothe mouth once, and then, with the palms turned up and the fingers
lined up and extended, the arms are lined up and extended straightforward, and once fully extended forward, the arms are spread out
horizontally, and are moved to a position that is diagonally forward
to the body.
Regarding these movements, Plaintiff asserts that the movementof extending one arm straight upward, with the other hand and arm
being extended forward from the position at the mouth, represents a84

story about the beautiful memory of blossoms (flowers).

However,

given that placing both hands to the mouth, as in the movement of[iii], and slowly extending them to the front, constitute the handmotion for "Ha'ina" and "puana" (Exhibit Otsu 5), the movements of[i] and [ii] are such that said hand motion is performed alternately
with each hand.

Such movements of [i] to [iii] are the same as thechoreography of Exhibit Otsu 32-1, and the same movement as thehand motion for "Ha'ina" and "puana" above is also found in otherchoreographies.

The movements of [i] to [iii] are different fromthe choreography of Exhibit Otsu 32-1 in the direction of the body,but this is a result of merely a slight change being added to the basic
elements, which are the same as those of similar examples, and it
should be said that no significant difference is created.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(S) I wili 'ia me ka lei kaulana, He blossom nani ho'i e, Ho'olana i ka malie;
the interlude
The same as described in (O), and (E) to (G) above.
(T) Ha'ina mai ana ka puana, I wili 'ia me ka lei kaulana, He blossom nani
ho'i e, Ho'olana i ka malie
The same as described in (R), (O), and (E) and (G) above.
(U) Ka pua 'ala onaonaa.

"Pua" means "flower", "'ala" means "scent", and "onaona" means"pleasant scent" (Exhibit Otsu 54), and Plaintiff gives the liberaltranslation, "the scent of flowers is floating".

b.

Choreography 15 consists of the following movements which
can be largely divided into the following two parts, namely, [i] thebody is turned sideways to the right, and after the right arm isextended straight backward, the fingertips of the right hand are
pinched and directed upward, and in doing so, the direction of the
body is returned so as to face diagonally forward to the right, andthe right arm, as if to circle the right side of the body, is extended
straight, diagonally forward to the right, and meanwhile, the left arm
is raised so as to create a space in the armpit, and is bent at the
elbow, and the left hand, with the palm turned up and the fingers
extended, is placed in front of the left chest, and the face and the85eyes are moved so as to look at the right hand, and [ii] with thedirection of the body and the right arm maintaining the same state as
the immediately preceding movement, the left arm, with thefingertips of the left hand lined up and directed downward, isextended straight, diagonally forward to the right, and after touching,
once, the part of the pinched fingertips of the right hand, the left
arm is kept raised so as to create a space in the armpit, and is bent at
the elbow, and the left hand passes in front of the nose and moves
diagonally forward to the left from the position of diagonallyforward to the right, and the left arm is extended straight, diagonallyforward to the left.
First, with regards to the movement of [i], Plaintiff asserts thatthe movement of the right hand, with the fingertips pinched, fromback to the front, represents "blossom" (flower).

However, thismovement is the same as the movement of [i] in the above (E) (Heblossom nani ho'i e), and it is acknowledged that the movement is,
like what is described there, assumable from the lyrics and is foundin a similar example.
Next, with regards to the movement of [ii], Plaintiff asserts thatthe movement of touching the tip of the pinched fingertips of theright hand with the left hand, and moving the left hand to the leftfrom the right by passing in front of the nose, represents the sweet
scent of blossoms (flowers) softly wafting in the air, and that bybreathing in the scent, blossoms (flowers) are remembered.
However, this movement is the same as the movement for "onaona"(pleasant scent) (movement of [ii] in E (B) below) of "He 'ala
onaona kūpaoa ", which are the same lyrics for the song, "Māpu
Mau Ke' Ala" (E below), corresponding to Choreography 16, so that
it is acknowledged that the movement is, as what is described there,
assumable from the lyrics and is found in a similar example.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(V) Outroa.

Choreography 15 consists of the following movements which
can be largely divided into the following two parts, namely, [i] thebody is turned to face front, and with the palm of the right hand86turned down and the fingertips extended, the right arm is extended
to the right, and the left arm is raised so as to create a space in thearmpit, and is bent at the elbow, and with the palm turned down andthe fingertips extended, the left hand is placed in front of the left
chest, and with the arms in the same state, the palms make a motionof "shake" (wavy motion) once, and then, with the left arm in thesame state, the right arm is raised so as to create a space in thearmpit, and is bent at the elbow, and the right hand is placed in frontof the right chest, and meanwhile, the palms of both hands makefists at the same time in front of the chest, and in a movement
resembling the tying of a string, the hands are pulled towards theouter sides (right and left sides) of the body once, and [ii] the leftfoot takes a slightly big step diagonally backward to the left, and the
body is turned directly forward to the left, and with the right arm
extended and the fingertips of the right hand extended, the righthand is moved as if to draw a large circle clockwise on the right sideof the body, and in the same flow, the right arm is extended straight
upward, and then, with the palm of the right hand turned up, theright arm is lowered from above and is extended slightly diagonallyforward to the right (right side of the body with the body turned
diagonally forward to the left), and in doing so, the face and theeyes are directed to the right hand, and are moved in line with thecircle drawn with the right hand, and the left arm is lowered straight
down along the body.
First, with regards to the movement of [i], it is the same
movement as the interlude of (I) above, so that it is a significantly
arranged version of a similar example.
Next, with regards to the movement of [ii], the movement is notfound in other examples, including the other choreographies of
Exhibit Ko 41.

However, since this movement is generally foundin a dance and not just in a hula dance, in a scene where the dancer
greets the audience, it is acknowledged that the movement isassumable from the lyrics.
b.

Accordingly, of the choreographies corresponding to the outro
here, it can be evaluated that the movement of [i] shows Plaintiff's
personality, but it cannot be evaluated that the movement of [ii]87shows Plaintiff's personality.
(W)

SummaryAs

described

above,

Choreography

15

contains

not

only

choreographies which are completely original ((F) [i], (N) [i] and [ii][and (H), (L), (M), (P), (Q), and (S)]), but also choreographies which
are significantly different from other choreographies ((F) [ii], (I), (V)[i] [(H), (L), (M), (P), (Q), and (S)]), and when seen as a whole,
Plaintiff's personality is shown, so that it is reasonable to acknowledge
copyrightability for the whole of Choreography 15.
E. Choreography 16 (Song: Māpu mau ke 'ala)(A) Introa.

Choreography 16 consists of the movements in which the righthand, with the palm turned down and the elbow bent lightly, is
extended to the front of the body at chest height and is lightly
shaken there.

Meanwhile, the left hand holds the hem of the skirt

and is placed by the hip, and the left hand, with the palm turned
down and the elbow bent lightly, is extended to the front of the bodyat chest height and is lightly shaken there, and meanwhile, the righthand holds the hem of the skirt and is placed by the hip.
Such movement is the same as the choreography indicated in thelower right corner of Exhibit Ko 26 for the intro (B (A) above) of
the song (Lei Ho' oheno) corresponding to Choreography 11 (Babove).
b.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(B) He 'ala onaona kūpaoa
a.

"'Ala" means "smelling good", "onaona" means "pleasant scent",and "kūpaoa" means "strong and permeating scent (like Jasmine)"(Exhibit Otsu 54), and Plaintiff gives the translation, "strong andsweet scent".

b.

Choreography 16 consists of the following movements which
can be largely divided into the following three parts, namely, [i]with both palms turned inward to the body, both arms are raised so
as to create a space in the armpit, and are placed in front of the nosein such a way that the right hand is slightly over the left hand, andlater, both hands are extended diagonally forward to the right, and88

[ii] next, with both hands extended, the palm of the right hand isturned up, and the fingers are pinched and the fingertips are directed
upward, and next, the left hand, with the palm turned down, is
extended diagonally forward to the left by passing in front of thenose, and when the left hand is extended, the palm is turned up, and[iii] next, with the palms of both hands turned down, both arms arelightly extended horizontally in both directions, and from the same
directions, the arms are simultaneously extended to the front at chestheight.

When the arms are extended to the front, they are bent at

the elbow, and the hands are crossed once in front of the nose, andby further extending both arms horizontally in both directions, they
are simultaneously extended upward.
First, with regards to the movement of [i], Plaintiff asserts thatthe movement of both hands to the front from the position at thenose represents how a man is smelling the scent of ginger, which
was carried by the wind blowing in from the window as he drives.
However, given that the hand motion for "onaona" (pleasant scent)is to place both hands in front of the nose (Exhibits Otsu 4, 26), themovement of placing both hands in front of the nose for a lyric
which generally means "scent" is assumable from the meanings ofthe lyrics.

There is also an example of the same movement, of

placing both hands in front of the nose and then extending themforward and spreading them out, in the choreography indicated in
the upper right corner of Exhibit Ko 33.
Next, with regards to the movement of [ii], Plaintiff asserts thatthe movement of extending one hand to the right, by touching the tipof the left hand with the right hand first, represents the scent ofginger flowers continuously wafting in the car.

However, themovement of touching the nose with one hand for a lyric meaning"scent" is also found in other choreographies of Exhibit Ko 33 forthis lyric, and in particular, the choreography for "He 'ala" at the
beginning as indicated in the lower left corner of Exhibit Ko 33 is
the same as the movement of [ii], including the point of touching the
tip of the left hand with the right hand first.
Also, with regards to the movement of [iii], Plaintiff asserts thatthe series of movements of extending the arms at a 45-degree angle
89represents how the scent of ginger flowers is very strong and thescent gradually fills the car.

However, the movement of extending

both hands simultaneously upward from the state of being extended
to the front is also found in the choreography indicated in the lower
left corner of Exhibit Ko 33.

The movement of [ii] here isdifferent in that the hands are crossed once in front of the nose in
mid-course, but the addition of a movement that focuses on the noseis within a scope that is assumable from the lyric which means"scent".

Meanwhile, Plaintiff asserts that the hand which is placedon the nose or is extended involves not one hand, but two hands, but
the act per se of placing both hands in front of the nose is the handmotion for "onaona" meaning "scent" to begin with, so that
Plaintiff's assertion cannot be accepted.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(C) e moani mai neia.

"Moani" means "breeze or soft wind (normally that which
carries scent)", "mai" means "to come" or "please come this way",and "nei" means "shuddering of breeze" (Exhibits Otsu 33, 54), andPlaintiff gives the translation, "blowing this way".

b.

Choreography 16 consists of the following movements which
can be largely divided into the following three parts, namely, [i]both arms, extended upward, are bent at the elbow and are crossed
once above the head, and [ii] with the elbows extended, fingertips ofboth hands are extended and the palms are turned inward, and both
hands are brought to the front of the face, and [iii] later, with thepalms turned up, both arms are extended to the front.
Regardingthesemovements,

Plaintiff

asserts

thatthemovements of [i] and [ii] represent how strongly the scent of ginger
fills the car, and how "he" simply enjoys the wonderful scent, andthe movement of [iii] consists of getting ready to move on to the
movement corresponding to the next lyric.

However, thechoreography indicated in the lower left corner of Exhibit Ko 33 isalso such that, following the same movement as the movement of [i],a movement that is slightly different from the movement of [ii], inthat both arms are brought to the front of the chest, is performed,
90

and later, [iii] like the movement of [iii], both arms are extended to
the front.

As described above, the choreography indicated in thelower left corner of Exhibit Ko 33 and the aforementioned
choreographies of [i], [ii], and [iii] are different with regards towhether the arms are brought to the front of the face or to the frontof the chest in the part of [ii], but the difference merely involves aslight difference in the hand position, and furthermore, themovement of [ii], which is suggestive of scent, can be assumed fromthe meanings of the lyrics here.
Meanwhile, Plaintiff asserts that the movement of [i] is originalin that the arms are crossed, and that the movement of [ii] is originalin that the movement is performed while the body is kept turned
facing front.

However, it is acknowledged that the choreography

indicated in the lower left corner of Exhibit Ko 33, although small,also involves the crossing of the arms.

Also, since the turning toface front is the most basic posture, it cannot be evaluated that such
movement constitutes Plaintiff's originality.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(D) E kono mai ana ia 'u,ea.

"Kono" means "to invite", "mai" means "to come" or "pleasecome this way", and "ia 'u" means "me" (Exhibits Otsu 33, 54), andPlaintiff gives the translation, "as if to invite me".

b.

Choreography 16 consists of the following movements which
can be largely divided into the following two parts, namely, [i] thebody is turned diagonally forward to the right, and the right arm isbent at the elbow, and the right hand is placed by the body at chestheight, and the left arm is extended forward, and with the palms ofboth hands turned up, the hands are shaken once, and then, botharms are bent at the elbow, and are pulled towards the front of thechest with the palms turned inward, and at the same time, thedirection of the body is returned so as to face front, and the above
movements are performed once, followed by the same movements
performed once by reversing the right and the left, and [ii] next,
both arms are raised so as to create a space in the armpit, and withboth palms turned inward and the fingertips extended, the hands are91

placed in front of the chest, and with the palms kept turned upward,
the arms are simultaneously extended straight to the front of thebody, and after the arms are extended, the elbows are bent, and withthe palms turned inward and the fingertips extended, the hands are
returned to the state of being placed in front of the chest, andmeanwhile, the face and the eyes are moved as if to follow thefingertips of both hands, and the above movements are repeated twotimes.
First, with regards to the movement of [i], Plaintiff asserts thatmaking the movement of inviting someone repeatedly represents themeaning of "come to me, I invite you to come near me".

However,the hand motion for "mai" (to come, please come this way) is suchthat with the palms of both hands turned up, one hand is placed in
front of the chest, and the other hand is extended diagonally forward,
and the hand, bent at the wrist, makes a movement of softly pullingin as if to lure someone, and both palms are held up in front of thechest (Exhibit Otsu 5).

The choreography indicated in the lower

left corner of Exhibit Ko 33 is such that the same movement isperformed by the dancer whose posture is to face diagonally forward
or front, in the first part of the choreography, and the choreography
indicated in the lower right corner of Exhibit Ko 33 is such that thesame movement is performed by the dancer whose posture is to facefront, in the second part of the choreography.

The movement of [i]is such that the same movement is performed by the dancer in the
posture of facing diagonally forward, in the first part, and in thesecond part, in the posture of facing front, so that the movement ismerely such that basically, the aforementioned hand motion is
performed with slight changes made thereto.

Meanwhile, Plaintiff

asserts that there is originality in that, in the movement of [i], both
hands are placed in front of the chest betweentimes during the
movement of [i], and that the movement of [i] is performed without
any turn being made.

However, in light of what is described above,

such assertion cannot be accepted.
With regards to the movement of [ii], Plaintiff asserts that
repeating the movement of extending the hands forward and thenbringing them to the chest represents "the scent invites me to come92

near".

However, given that the hand motion for "au" (I), which has

the same meaning as "ia 'u", consists of turning the palms towards
the dancer's own body in front of the chest (Exhibit Otsu 3), themovement is assumable from the lyrics, and nearly the same
movement is also found in the choreography indicated in the lower
right corner of Exhibit Ko 33.

Meanwhile, Plaintiff asserts that

there is originality in that the movement of [ii] starts by placing botharms in front of the chest, and that the arms are extended straight tothe front, and that the same movement is repeated twice, but in lightof what is described above, such assertion cannot be accepted.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(E) 'Auhea 'oe, e ku'u nania.

"'Auhea" means "where", "'oe" means "you", "ku'u" means "my",and "nani" means "beautiful" (Exhibit Otsu 54), and Plaintiff gives
the translation, "where are you, my beautiful person".

b.

Choreography 16 consists of the following movements which
can be largely divided into the following two parts, namely, [i] withboth arms raised so as to create a space in the armpit, both hands areextended forward from the position in front of the chest, and withboth palms turned up, the hands are crossed in front of the chest,
and later, both arms are extended diagonally forward so as to spreadout in both directions, and [ii] next, with the fingertips of the left
hand extended upward, the left arm is extended straight upward, andwith the right arm slightly bent, the right hand is placed around thehip, and later, with the right hand in the same state, and as the palmof the extended left hand is shaken twice, the left arm is loweredstraight downward, and meanwhile, the face and the eyes are turned
so as to follow the fingertips of the left hand.
First, with regards to the movement of [i], Plaintiff asserts thatthe movement of crossing the hands in front of the chest, and thenextending both arms outward from the position in front, represents
the state of looking for something or someone, as in "where are you?
I can smell you but cannot see you".

However, while thismovement is not found in other choreographies of Exhibit Ko 35,
the same movement is found in the choreography indicated in
93

Exhibit Otsu 28 for "Auhea" in the lyrics for the song, "My Sweet
Pikake Lei" (Exhibit Otsu 27), and in the choreography indicated in
Exhibit Otsu 30 for "Auhea" in the lyrics for the song, "Mele ofmythical goddess", so that there are similar examples for the
movement of [i] as the choreography for "Auhea".

Meanwhile,

Plaintiff makes an assertion as if there is no similar example for the
movement of [i], but as described above, such assertion cannot be
accepted.
Next, regarding the movement of [ii], Plaintiff asserts thatmoving a hand downward on the right side of the body represents abeautiful woman (nani), who is a friend.

However, this movement

is a hand motion for "nani" (beautiful), of bringing both hands or
one hand down from above (Exhibits Otsu 4, 5, 26), and is the sameas the choreography indicated in the lower right corner of Exhibit
Ko 33.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(F) ku'u pua, e milika'a aia.

"Ku'u" means "my", "pua" means "flower", "mili" means "totouch by hand" or "to be affectionate", and "ka'a" means "to roll"(Exhibits Otsu 37, 54), and Plaintiff gives the liberal translation,"beloved flowers".

b.

Choreography 16 consists of the following movements which
can be largely divided into the following two parts, namel y, [i] theleft arm is lowered to the left side of the body, and the right arm islowered to the front of the body, and the palms are turned down, andthe elbows are bent lightly, and in that state, both palms make awavy motion once, and later, as both arms are lifted and areextended to the front of the body, the fingertips of the right hand are
pinched and directed upward, and the left hand, with the palm
turned upward, is placed under the right hand, and [ii] next, after
both arms are fully extended to the front, with the forms of both
hands maintained, the elbows are bent slowly and the arms are
returned to the position in front of the chest, and meanwhile, theface and the eyes are turned to the direction of the hands, and are
moved as if to follow the direction pointed out by both hands.
94First, with regards to the movement of [i], Plaintiff asserts thatthe choreography of the hand represents "flower", which symbolizes
a beautiful woman (nani), who is a friend.

However, thismovement is assumable given that the hand motion for "pua"(flower) consists of one hand or both hands being pinched anddirected upward as if to create a bud-like shape (Exhibits Otsu 3, 4),
and the same movement is performed in the choreographies
indicated in the lower left corner and lower right corner of Exhibit
Ko 33, either with one hand or with both hands.
With regards to the movement of [ii], Plaintiff asserts thatbringing the above "flower" to the dancer's own chest represents
how "nani" is delicate and frail, and of the desire to hold her andtake care of her.

However, given that the hand motion for "mili"(to be affectionate) is to place one palm on top of the other in frontof the chest and to shake them (Exhibit Otsu 26), the placing of both
hands in front of the chest is assumable from the lyrics, and thesame movement is also found in the choreographies indicated in thelower left corner and lower right corners of Exhibit Ko 33.
Meanwhile, Plaintiff asserts that there is originality in that [a] botharms are extended straight, [b] both arms are bent while the body is
kept facing front, and [c] the hand, whose fingers are not pinched, isplaced alongside the other hand, whose fingers are pinched, insteadof the first hand brushing the second hand.

However, with regards

to [a], it is the same as the choreography indicated in the lower left
corner of Exhibit Ko 33, and as for [b] and [c], even if there aredifferences in these respects, they concern minor parts, so that theycannot be considered significant differences.

Accordingly,

Plaintiff's assertion cannot be accepted.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(G) Ka pua 'Awapuhi 'auli'ia.

"Pua" means "flower", "'Awapuhi" means "ginger", "'au" means"group" or "huddle", and "li'i" means "small" (Exhibit Otsu 54), andPlaintiff gives the translation, "delicate and elegant ginger flower".

b.

Choreography 16 consists of the following movements which
can be largely divided into the following three parts, namely, [i]95with both hands kept in the same form as the immediately preceding
movement, both arms are once again extended to the front of thebody, and in that state, are turned diagonally backward to the right,
and [ii] next, as the body is returned to the direction of facing front,
the left arm is bent, and the left hand, with the palm turned down, ispassed in front of the nose and is extended diagonally forward to theleft while the palm is turned upward, and meanwhile, the directionof the face and the eyes is turned as if to follow the direction
pointed out by the left hand, and [iii] next, the left arm, which isextended diagonally forward to the left, is bent at the elbow with thepalm turned inward, and is pulled to the front of the nose, and later,
is extended diagonally forward to the left again, and the fingers of
the palm are pinched and directed upward, and later, the right arm is
moved from the right to the left as it is kept extended forward, andthe right hand, with the palm turned upward, is placed under the left
hand.
First, with regards to the movement of [i], Plaintiff asserts thatthe flower represented by the hand motion is a ginger flower.
However, this is a result of the same movement as the hand motion
for "pua" (flower) (Exhibits Otsu 4, 5, 25), of pinching a hand anddirecting it upward so as to create a bud-like shape, combined with aturn of looking diagonally backward.
Next, with regards to the movement of [ii], Plaintiff asserts thatby touching the left hand, which represents "flower", with the righthand, and drawing in a breath, the movement represents thekindness of a woman called "nani".

However, this movement is

the same as the movement of [ii] in the choreography corresponding
to "He 'ala onaona kūpaoa" in (B) above, and is the choreography
for "scent", and this per se is the same as the choreography indicatedin the lower left corner of Exhibit Ko 33 for "He 'ala" at the
beginning of the above (B).
Next, with regards to the movement of [iii], Plaintiff asserts thatthe movement of bringing the left hand to the lips while taking thesteps of "kao" represents the love towards the delicacy (frailness) of
the friend.

However, this movement is such that while the righthand makes the same movement as the hand motion for "pua"96

(flower), of pinching the hand and directing it upward to make a
bud-like shape, the left hand makes the same movement as the handmotion for "onaona" (pleasant smell), of bringing the hand to the tipof the nose as the dancer draws in a breath.
As described above, choreographies of the above [i] to [iii]consist of factors of flower and scent, and considering that the lyrics
here are "pua" and "'Awapuhi", it can be said that the factor of theflower can be derived from the lyrics, and the factor of scent is also
related to flower.

However, the direct lyric here concerns only theflower, and in fact, when other choreographies of Exhibit Ko 33 areconsidered, it is evaluated that the choreographies corresponding to
the lyrics here are merely performed in such a way that the same
movement as the hand motion for "pua", or what can be considered
an arranged version thereof, is performed in a movement which
consists of two parts at most, and there is no example in which the
movement consists of a total of three parts by incorporating the handmotion for "scent", as in Choreography 11.

In particular, themovement of [iii] is such that the factors of flower and scent areincorporated therein, and such choreography is not found in otherchoreographies of Exhibit Ko 33.
c.

Accordingly, while it can be said that the choreographies
corresponding to the lyrics here are combinations of existing
movements and hand motions that are assumable from the meaningsof the lyrics, and since such combinations include Plaintiff's original
combinations, it can be evaluated that Plaintiff's personality isshown.

Meanwhile, Defendant asserts that the combinations

merely consist of existing hand motions and thus originality should
not be acknowledged, but in light of what is described above, suchassertion cannot be accepted.
(H) I kāhea mai ia'ua.

"Kāhea" means "to call", "mai" means "to come" or "pleasecome this way", and "ia'u" means "me" (Exhibits Otsu 33, 54), andPlaintiff gives the liberal translation, "you, as if to invite me".

b.

Choreography 16 consists of the movements in which the left
arm is raised so as to create a space in the armpit, and with the palm
facing front, the left hand is placed to the left side of the mouth, and97

with the left hand in that state, the right arm is extended to the front,with the palm turned down, and as the right arm is kept extended to
the front, it is moved diagonally forward to the right from theposition that is diagonally forward to the left, along with thedirection of the body, and meanwhile, the direction of the face andthe eyes are moved as if to follow the direction pointed out by theright hand.
Regarding this movement, Plaintiff asserts that placing the left
hand next to the mouth and moving the right hand away from themouth represents that scent is calling out, inviting, and seducin g insuch a way as to resemble that "he" is looking for someone orsomething.

However, the hand motion for "olelo", which means"to call out" like "kāhea", is such that fingertips of both hands areplaced to the mouth, and one hand is held out while lightly turning
the palm upward (Exhibit Otsu 3), so that even in the case of"kāhea", the movement of placing a hand to the mouth and thenextending the hand to the front is assumable from the lyrics.

Suchmovement of placing one hand to the mouth and extending the other
hand to the front is found in similar examples in the choreographies
indicated in the upper right corner and lower right corner of Exhibit
Ko 33.

Meanwhile, Plaintiff asserts that there is originality in that

one hand is placed next to the mouth, and the other hand is extended
to the front and is moved in the same state, but in light of what is
described above, such assertion cannot be accepted.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here represent Plaintiff's personality.

(I) e walea me 'oe, i laliaa.

"Walea" means "to enjoy", "me" means "together withsomeone/something", "'oe" means "you", and "lalia" means "there"(Exhibit Otsu 54, the entire import of the oral argument), andPlaintiff gives the translation, "enjoying while being relaxed there".

b.

Choreography 16 consists of the following movements which
can be largely divided into the following two parts, namely, [i] thebody is bent diagonally forward to the right, and as the palm of theleft hand is directed downward, the left arm is bent at the elbow, andin that state, the left hand is lowered to the front of the chest, and at98

the same time, the right arm, which is extended diagonally forward
to the right, is bent, and the right hand, with the palm turned down,is placed around the area in front of the neck, and later, as both
palms are turned up, both arms are extended straight, diagonallyforward to the right, and [ii] next, both arms are extended to thefront, and with the palms still turned upward, and as the palms makewavy motions four times, the body makes a 450-degree turncounterclockwise from the position that is diagonally forward to theright, and turns diagonally forward to the left.
With regards to the movement of [i], Plaintiff asserts that
placing the right hand under the chin represents the state of being
relaxed or enjoying, and the following movement of extending botharms diagonally forward represents "it's you I mean", and withregards to the movement of [ii], moving the feet in octuple time andmaking a 360-degree turn while the arms are extended diagonallyforward represents the hopefulness of the man who wants what he islooking for to be found.
Regarding this point, starting with the other choreographies of
Exhibit Ko 33, movements like movements of [i] and [ii] are notfound in other choreographies.

While movements of [i] and [ii]partly incorporate the same movement as the hand motion for "'oe"(Exhibits Otsu 3 to 5), of pointing at the person in front, thepreceding movement and the following movement are not normallyassumed from the meanings of the lyrics such as "walea" and "me'oe" and "lalia" or from the theme.
Meanwhile, Defendant asserts that the other choreographies of
Exhibit Ko 33 are the same movements as Choreography 16 in thatboth hands are extended, so that it cannot be said that Choreography
16 has originality.

Certainly, while other choreographies of

Exhibit Ko 33 contain the aspect, per se, of extending both hands,
the flow is completely different from that of Choreography 16, sothat it cannot be evaluated as a similar example of Choreography 16.
Accordingly, Defendant's assertion cannot be accepted.
c.

Accordingly, since the choreographies corresponding to the
lyrics here are original to Choreography 16, it can be evaluated that
Plaintiff's personality is shown.
99

(J) Pulupe i ka uaa.

"Pulupe" means "soaking wet", and "ua" means "rain" (Exhibits
Otsu 37, 54), and Plaintiff gives the translation, "soaked in the rain".

b.

Choreography 16 consists of the movements in which both arms,
which are extended to the front, are raised up from the left side of
the body, and the left arm, with the palm turned inward, is extended
up, and the right arm is lightly bent at the elbow, and the right hand,with the palm turned inward and the fingertips directed upward, isplaced in front of the face, and later, the extended left arm is bent,
and the right arm is bent at the same time, and both arms arelowered to the same position (around above the left shoulder), andmeanwhile, the direction of the face and the eyes is moved so as tofollow the direction of the left hand, and the above movements are
performed once again by reversing the right and left.
Regarding this movement, Plaintiff asserts that lowering thehands to the shoulder from above while gently shaking the fingers
represents light rain moistening the ginger flower, and at the sametime, the "kindness" of a friend.

However, the hand motion for"ua" (rain) is to hold up both hands, and while fluttering thefingertips as if to indicate the falling rain, both hands are
simultaneously brought down from above (Exhibit Otsu 4), andChoreography 16 here is such that the same movement is performed
two times by lowering both hands to around the area above theshoulder and in the posture of reversing the left and the right.

The

choreography indicated in the lower left corner of Exhibit Ko 33 issuch that the same movement as Choreography 16 is performed,
although as an extension of the next phrase.
Meanwhile, Plaintiff asserts that there is originality in that thepalms are not shaken when both arms are lowered, and that the steps
do not involve much locomotion.

Certainly, the movement isdifferent from the choreography indicated in the lower left corner of
Exhibit Ko 33 in whether or not the palms are shaken when botharms are lowered.

However, this point only concerns a minor part,and cannot be considered a significant difference.

As for thedifference in the level of locomotion, the choreography indicated in
the lower left corner of Exhibit Ko 33 does not involve much100

locomotion, either, so that this, too, cannot be considered asignificant difference.

Accordingly, Plaintiff's assertion cannot be

accepted.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(K) le'ale'a kāua i ka nahele,ea.

"Le'ale'a" means "happiness" or "amusement", "kāua" means"we", and "nahele" means "forest" (Exhibit Otsu 54), and Plaintiff
gives the liberal translation, "we found happiness in the forest".

b.

Choreography 16 consists of the following movements which
can be largely divided into the following two parts, namely, [i] thebody is turned diagonally forward to the left, and the right arm isbent at the elbow, with the palm turned inward, and the right hand,with the fingertips directed upward, is placed to the left shoulder,
and the left arm, as it is lowered, is bent lightly at the elbow, and theleft palm is turned inward and is placed to the right side of the hip,and meanwhile, the direction of the face is kept in the state of facing
front, and [ii] with the body turned to the left, the right arm isextended upward in front of the body, and the right palm is turned
inward, and the left arm is extended diagonally forward to the left,
and the left palm is lightly extended upward, and in that state, thebody makes a 360-degree turn clockwise.
First, with regards to the movement of [i], Plaintiff asserts that
this caressing movement represents how being with a woman, who
is a friend, and with the "flower" which symbolizes that friend,brings happiness.

However, this movement is the same as the handmotion for "le'ale'a" (happiness) (Exhibit Otsu 26), of crossing thehands in front of the chest.

Meanwhile, Plaintiff asserts that thereis originality because there is no similar example, but as describedabove, since the movement of [i] is the same as an existing handmotion, the point made by Plaintiff cannot provide a basis for
acknowledging originality.
Next, with regard to the movement of [ii], Plaintiff asserts that
extending the arms upward represents the state of the vast
surroundings.

Although the movements up to the raising of botharms are the same as the choreographies indicated in the lower left101

corner and lower right corner of Exhibit Ko 33, the choreography ofmaking an L-shape with both hands and turning the body in thatstate is not found in other examples.

While a turn is a type of

normal steps, making a turn is not normally assumable from themeanings of the lyrics or from the theme, and making a turn while
spreading both arms and making an L-shape amplifies liveliness andthe spreading effect, so that it is reasonable to evaluate that
Plaintiff's personality is shown further, to a certain degree.
Meanwhile, Defendant asserts that since the movement is the sameas the other choreographies of Exhibit Ko 33, there is no originality,
but in light of what is described above, such assertion cannot be
accepted.
(L) Ua ho'i akula ka Helenaa.

"Ua" is a particle that precedes a verb and indicates a completed
action, "ho'i" means "to depart" or "to go", "akula" is a particle thatindicates the direction away from the speaker, and "Helena" means"characteristics, face" (Exhibits Ko 60-1, 60-2, Exhibits Otsu 37,54), and Plaintiff gives the liberal translation, by combining themwith the lyrics of (M), "although the sight of the beloved flower has
gone".

b.

Choreography 16 consists of the following movements which
can be largely divided into the following two parts, namely, [i] theface and the body are turned diagonally forward to the right, and theright arm is raised so as to create a space in the armpit, and is bent
at the elbow, and the right palm is directed downward and is placedin front of the chest, and the left arm is raised so as to create a spacein the armpit, and is lightly bent and is placed to the left side of thehip, and these movements are performed once again by reversing theright and the left, and [ii] next, with the body turned diagonallyforward to the left, the left arm is bent at the elbow and is raised so
as to create a space in the armpit, and the left palm is turned down
and is placed in front of the chest, and as the body is returned to theposition of facing front, the right arm is bent at the elbow and israised so as to create a space in the armpit, and the right palm isturned inward and is placed to the left cheek first, and later, as thepalm is turned outward, the right palm is moved towards the right102

cheek, and with the right palm turned outward, the right palm isplaced to the right cheek, and meanwhile, the face is kept turned
facing front.
First, with regards to the movement of [i], Plaintiff asserts that
placing a hand to the chest as the dancer looks far away represents
that "she" is not physically present.

The choreography indicated in

the upper right corner of Exhibit Ko 33 is such that the hand, which
is not bent at the elbow, is extended forward, so that it is different
from the movement of [i] in that the hand, which is not bent at the
elbow, is bent lightly and is placed to the hip, as is the case in the
movement of [i], but the choreography and the movement of [i] are
the same in all other respects.

Furthermore, since this difference is

not such that the difference in the body movement becomes greater
as a result, it cannot be considered a significant difference.
Meanwhile, Plaintiff asserts that there is originality in that the hand,which is not bent at the elbow, is not extended forward, but in lightof what is described above, such assertion cannot be accepted.
Next, with regards to the movement of [ii], Plaintiff asserts thatmoving the palm along the front of the face represents that theimage of "her" face will continue to live forever in "his" heart.
Choreography indicated in the upper right corner of Exhibit Ko 33 issuch that the hand, which is not placed to the cheek, is extended
forward instead of being bent at the elbow, so that there is adifference from the movement of [ii] in which the hand, which is notplaced to the cheek, is bent.

However, the choreography and the

movement of [ii] are the same in all other respects.

Furthermore,

as is the case with the movement of [i] above, this difference cannot
be considered significant.

Meanwhile, Plaintiff asserts that there isoriginality in that the hand, which is placed on one cheek, is moved
towards the other cheek, and that the arm, whose hand is not placed
to a cheek, is bent at the elbow, and that the face is turned to facefront.

However, since the former two merely concern unnoticeable

differences involving minor parts, and the latter merely concerns a
difference of a degree that does not affect the movement of theentire body, none of them can be considered a significant difference,and thus Plaintiff's assertion cannot be accepted.
103

c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(M)a.

o ka pua ho'oheno"Pua" means "flower", and "ho'oheno" means "to love", andPlaintiff, by combining them with the lyrics of (L), gives the liberaltranslation, "although the sight of the beloved flower has gone".

b.

Choreography 16 consists of the following movements which
can be largely divided into the following two parts, namely, [i] thefingers of both hands are extended and the palms are turned outward,
and the right hand is kept in a position slightly higher than that of
the left hand, and in that state, both hands are extended straight,
diagonally upward to the left, and [ii] as both arms, which areextended to the upper left, are simultaneously lowered to theposition in front of the chest, and as both palms are turned over, thefingers are pinched and the fingertips are directed upward, and botharms are lined up at the position in front of the chest and areextended diagonally forward to the right.
Regarding these movements, Plaintiff asserts that making the
movement of a symbol for the ginger flower, which represents"nani", who is a friend, represents how memories remain dear to aperson forever.
Regarding this point, the movement of [ii] is the same as thehand motion for "pua" (flower), of pinching the hand and directing
it upward so as to create a bud-like shape (Exhibits Otsu 4, 5, 25).
On the other hand, the movement of [i] is not found in otherchoreographies, including the other choreographies of Exhibit Ko 33,
and is different from the hand motion for "pua" (flower), and is also
different from the hand motion for "ho'oheno" (to love) (Exhibit
Otsu 26), of crossing the hands in front of the chest, so that the
movement is not normally assumable from the meanings of the
lyrics or from the theme.

Meanwhile, Defendant asserts that the

movement of Choreography 16 is found in other choreographies of
Exhibit Ko 33, so that there is no originality, but as described above,the movement of [i] is not found in the other choreographies of
Exhibit Ko 33, so that Defendant's assertion cannot be accepted.
c.

Accordingly, of the choreographies corresponding to the lyrics
104here, the movement of [i] is original to Choreography 16, so that it
can be evaluated as showing Plaintiff's personality, but it cannot be
evaluated that the movement of [ii] shows Plaintiff's personality.
(N) Māpu mau mai ke 'ala anuheaa.

"Māpu" means "scent" (especially the scent blown by the wind
and wafting through the air), "mau" means "always" or "unchanged",and "mai" means "to come", "ke 'ala" means "scent", and "anuhea"
means "cool and agreeable fragrance (like the highland of a forestarea)" (Exhibits Otsu 33, 54), Plaintiff gives the liberal translation,"the fresh scent still remains".

b.

Choreography 16 consists of the following movements which
can be largely divided into the following two parts, namely, [i] as
both palms are turned inward, both arms, which are extended
diagonally forward to the right, are pulled back, and the fingers ofboth hands are extended and the palms are turned inward, and theright hand is placed in front of the nose and the left hand is placed
underneath the right hand, and later, as both arms are once again
extended diagonally forward to the right, and as the fingers of theright hand are pinched, the fingertips are directed upward, and [ii]next, after both arms are extended diagonally forward to the right,
with the right hand kept in the same state, the tip of the left handtouches the tip of the right hand, and then, the left arm is pulled
towards the front of the face, and the left palm is turned down and isplaced in front of the nose, and from there, the left arm is once again
extended straight, diagonally upward to the left.
Regardingthesemovements,

Plaintiff

asserts

thatthemovements of pulling both hands towards the front of the nose andthen extending the hands again, and the left hand touching the righthand, which represents "flower", and the left hand passing the frontof the flower and being extended upward, represent how the"flower", which symbolizes a friend, has withered and disappeared,
but that the refreshing scent, or in other words, the memory with adear friend, will continue to remain.
First, with regards to the movement of [i], it is the same as thechoreography indicated in the lower right corner of Exhibit Ko 33
except for the pinching of fingers.
105

Next, the pinching of thefingers is the same as the hand motion for "pua" (flower), of
pinching the hand and directing it upward so as to create a bud-likeshape (Exhibits Otsu 4, 5, 25).

While the choreography indicatedin the lower left corner of Exhibit Ko 33 is such that, in the placecorresponding to the following [ii], there is a movement involving
one hand, instead of two hands, of extending the hand forward withthe fingers pinched after the hand is placed in front of the flower,
and since performing a movement which incorporates the handmotion for "pua" in this part of the lyrics is found in a similar
example, it cannot be said that the aforementioned difference issignificant.

Meanwhile, Plaintiff asserts that the movement of [i]is original in that after both arms are placed in front of the nose,
they are not spread out in both directions again.

However, themovement is the same as the choreography indicated in the lower
right corner of Exhibit Ko 33 in that the extended arms are placed in
front of the nose together, and are then extended, so that the point
made by Plaintiff is a minor difference, and thus Plaintiff's assertion
cannot be accepted.
Next, with regards to the movement of [ii], the choreography
indicated in the lower left corner of Exhibit Ko 33 has the same
movement in the place which corresponds to the movement of [i]above, and the aforementioned choreography also has the same
movement in the place which corresponds to "the He 'ala onaona
kūpaoa" in the above (B).

At the end of the movement of [ii], there

is a movement in which the left hand is once again placed in front of
the nose and is extended, but since this is merely a repeat of theimmediately preceding movement, it cannot be said that the
movement is significantly different

fromsimilar examples.

Meanwhile, Plaintiff asserts that the movement of [ii] is original inthat the movement is not found in the other choreographies of
Exhibit Ko 33, but in light of what is described above, suchassertion cannot be accepted.
c.

Accordingly, since the choreographies corresponding to the lyrics
here are assumable from existing choreographies and from the lyrics,
it cannot be evaluated that Plaintiff's personality is shown.

(O) He 'ala onaona kūpaoa, e moani mai nei, E kono mai ana ia u,e, 'Auhea
106

'oe, e ku'u nani, ku'u pua, e milika'a ai, Ka pua 'Awapuhi 'auli'i, I kāhea
mai ia'u, e walea me 'oe,i lalia, Pulupe i ka ua, le'ale'a kāua i ka nahele,e,Ua ho'i akula ka Helena, o ka pua ho'oheno, Māpu mau mai ke 'alaanuhea, Māpu mau mai ke 'ala anuhea
The same as described above in (B) to (N).
(P) Outroa.

Choreography 16 consists of the following movements which
can be largely divided into the following two parts, namely, [i] withthe right palm turned down, the right elbow is bent slightly, and theright arm is extended to the front at chest height and is shaken
lightly, and meanwhile, the left hand holds the hem of the skirt andis placed next to the hip, and the left palm is turned down, and theleft elbow is bent lightly, and the left arm is extended to the front of
the body at chest height and is shaken lightly, and meanwhile, theright hand holds the hem of the skirt and is placed next to the hip,and [ii] with both palms turned down, both arms are extended to thefront by passing the right and left sides of the body, and both palms
are lined up in front of the body, and later, both arms are lowered tothe sides of the body.
First, the movement of [i] is the same as the choreography
indicated in the lower right corner of Exhibit Ko 26, which is one of
the choreographies corresponding to the intro of (A).

Next, themovement of [ii] is the same as the choreography indicated in thelower left corner of Exhibit Ko 33.
b.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the outro show Plaintiff's personality.

(Q) Summary
As described above, Choreography 16 contains choreographies
which are completely original ((G), (I), (M) [i] [and (O)]), andfurthermore, contains arrangements which are significantly different
from arrangements of other choreographies ((K) [ii] [and (O)]), so thatwhen seen as a whole, Plaintiff's personality is shown, and thus it isreasonabletoacknowledge

copyrightability

Choreography 16.
F. Choreography 17 (Song: Maunaleo)(A) He aloha nō 'o Maunaleo
107

for

the

whole

of

a.

"Aloha" means "to love", and "Maunaleo" is the name of amountain (Exhibit Otsu 33, the entire import of the oral argument),
and Plaintiff gives the liberal translation, "truly beloved mountain,
Maunaleo".

b.

Choreography 17 consists of the following movements which
can be largely divided into the following two parts, namely, [i] theleft arm is raised so as to create a space in the armpit, and is bent at
the elbow, and in that state, with the palm turned down and thefingertips extended, the left hand is placed in front of the left chest
where the palm is turned upward, and the right arm is raised so as tocreate a space in the armpit, and is bent at the elbow, and in thatstate, with the palm turned down and the fingertips extended, theright hand rotates once around the left palm, which is placed in frontof the left chest, and as the palm is turned upward, the elbow is
extended rightward in a circular motion from the position in front of
the body, and the direction of the face and the eyes is turned to thelower left corner at first, and is turned to the right immediately
before the right arm is extended rightward the body, and [ii] thebody is turned diagonally forward to the right, and the fingertips areextended and the palm is turned down, and in that state, as botharms are extended and lowered in the area around the front of thehip, and as the palm is kept turned down, both palms are lined up
and placed parallel to each other and moved as if to be placed in thearea around the front of the hip, and then, both palms are turned
over so as to face front, and later, both palms are slowly spread out
in both directions, and in doing so, the face and the eyes are turnedto the direction of both hands, and are then turned diagonally
upward.
First, with regards to the movement of [i], Plaintiff asserts thatmaking a movement with the right hand as if to offer the heart
represents something that is loved.

However, the movement of [i]corresponding to "He aloha" here is the same as the choreography
indicated in the lower left corner of Exhibit Ko 51 for "aloha"(movement of [i] of the above C (J)) in "Ke aloha i ka 'ohu, ePapakōlea", which are the same lyrics as the song (Ua Lanipili I Ka
Nani O Papakōlea) corresponding to Choreography 13 (above C), so108

that it is acknowledged that the movement is assumable from the
lyric of "aloha".
Next, with regards to the movement of [ii], Plaintiff asserts thatboth hands represent the foot of the mountain of Maunaleo, and the
movement of the eyes represents the vastness of the mountain of
Maunaleo.

However, except for the difference of the dancer fully

standing up or sitting with one knee drawn up, the choreography
indicated in the lower right corner of Exhibit Ko 46 involves thesame movement in which the dancer sits with one knee up, and it
cannot be said that the movement of [ii] in which the same
movement is performed with the dancer standing up is significantly
different.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(B) I lohia e ke kilihunea.

Of "I lohia", "lohia" means "sparkling", and "kilihune" means"gentle misty rain" (Exhibits Otsu 36, 54), and Plaintiff gives theliberal translation, "gently sparkling misty rain".

b.

Choreography 17 consists of the following movements which
can be largely divided into the following two parts, namely, [i] as
the direction of the body is turned diagonally forward to the right,
both palms are turned to the front and the fingers are extended, andin that state, both arms are bent lightly at the elbow and areextended upward, and in doing so, the right palm is positioned
slightly higher than the left palm at first, and in that state, both
palms make fists once and are opened again by extending thefingertips, and next, the positions of the left palm and the right palm
are reversed, and once again both palms make fists and are opened
again by extending fingertips, and in doing so, the face and the eyes
are turned to the direction pointed out by both hands, and [ii] bylining up the fingers and opening both palms, the palms are turnedto the front, and both arms are extended slightly diagonally forward,
and later, with the heights of both palms lined up, and with thepalms kept facing front, and as the fingers of both palms make small
shaky motions, both palms are slowly lowered at the same time, andin doing so, the face and the eyes are turned to the direction of both109

palms, and are lowered from above along with the movement ofboth palms.
First, with regards to the movement of [i], Plaintiff asserts thatholding up both hands and making fists and then opening them
represents the state of sparkling.

However, the choreography

indicated in Exhibit Otsu 35-6 is the same in that both hands areheld up and the heights of both hands are reversed, and is only
different in that whether or not palms make fists and are opened(although Defendant asserts that there is no difference in this respect,such assertion cannot be accepted).

Since the above difference isminor, it cannot be said that there is a significant difference.
Next, with regards to the movement of [ii], Plaintiff asserts thatlowering both hands as the hands make small shaky motions
represents the sparkling misty rain that is blown by the wind.
However, this movement is the same as the hand motion for "ua"(rain) (Exhibits Otsu 3, 4), of holding up both hands, and as thefingertips make fluttering motions, both hands are simultaneously
lowered diagonally.

Given that the meanings of the lyrics, "ua"(rain) and "kilihune" (gentle misty rain) are the same, it isacknowledged that the movement is assumable from the lyrics.
c.

Accordingly, it cannot be acknowledged that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(C) Kohu 'ahu 'ao no ka uka
a.

"'Ahu" means "clothes or external coat that covers the upper
body or the shoulder part (like a cape, shirt, or coat)", and "uka"means "highland" (Exhibit Otsu 36), and Plaintiff gives the liberaltranslation, "like a coat placed over the highland".

b.

Choreography 17 consists of the following movements which
can be largely divided into the following two parts, namely, [i] thebody is turned to face front, and the right arm is lightly lowered so
as not to create a space in the armpit, and is bent at the elbow, andwith the fingers of the right hand lined up and extended, and withthe fingertips turned towards the body, the right hand is brought tothe area around above the right shoulder, and at the same, the left
arm is lightly lowered so as not to create a space in the armpit, andis bent at the elbow, and with the fingers of the left hand extended,110and as the left palm is turned towards the body, the left hand isbrought to the front of the right shoulder, and next, the positions of
the right hand and the left hand are reversed, and the movement isperformed with the right and the left being opposite, and in doing so,
the face and the eyes are moved in the direction to the left from thedirection of the right along with the positions of both hands, and [ii]both palms are turned to the front and the fingertips are extended,
and in that state, the hands are extended diagonally forward to thefront of the body, and in doing so, the right arm is lightly bent at the
elbow, and the right palm is placed in a position that is slightly
lower than that of the left palm.

The face and the eyes are turned

towards the fingertips of the extended hands.
First, with regards to the movement of [i], Plaintiff asserts thatthe movement of using both hands and placing them alternately on
the shoulders represents how a delicately-woven coat is hung overthe shoulders.

Since "'ahu" means an external coat that covers theshoulder part, and the choreography indicated in the lower left
corner of Exhibit Ko 46 and the choreography indicated in Exhibit
Otsu 35-6 also have the movement of simultaneously bringing both
hands to the shoulders, the movement per se of bringing the hands totheshouldersiscommonplace.

However,

while

in

the

aforementioned similar examples, the movement of bringing both
hands to the shoulders is for a brief moment, the movement of [i] issuch that both hands are placed on one shoulder first, and are thenbrought to the other shoulder, so that there is a difference involving
the movement of the entire body, and thus the impression given by
the difference is made significantly different.

Accordingly, themovement of [i] is such that the meanings of the lyrics and theexisting choreographies are basically the same as similar examples
but are arranged significantly differently.
Next, with regards to the movement of [ii], Plaintiff asserts thatholding up both hands high represents the height of the highland.
However, "uka" means "highland", and the choreographies indicatedin the upper right corner and the lower left corner of Exhibit Ko 46
and the choreographies indicated in Exhibit Otsu 34-3 are the sameas the movement of [ii] in that both hands are held up, and the only111

difference concerns the difference in the heights to which the hands
are held up.

Furthermore, such difference is merely minor, so thatit cannot be said that there is a significant difference.
c.

Accordingly, of the choreographies corresponding to the lyrics
here, it can be evaluated that the movement of [i] shows Plaintiff's
personality, but it cannot be said that the movement of [ii] shows
Plaintiff's personality.

(D) He kamalani kamaehu kau i ka hano ēa.

"Kamalani" means "favorite child", "kamalani kamaehu kau"means "to be cherished", and "i ka hano ē" means "to be revered"(Exhibit Otsu 36, the entire import of the oral argument), andPlaintiff gives the liberal translation, "to be cherished and berevered for power and strength".

b.

Choreography 17 consists of the movements in which the bodyis turned to the right, and the left arm is lowered straight and lightly
holds the skirt, and the right palm is opened and is directed upward,
and the right arm, with the elbow bent slightly, is extended to theright side of the body, and in the same flow, the right arm is rotatedslightly to the front and is extended diagonally forward to the rightside of the body, and the face and the eyes are turned to thedirection pointed out by the right hand, and are moved in line withthe movement of the right hand, and with the right hand and theright arm in the same state as the immediately preceding movement,
the left palm is turned upward, and with the fingertips extended, theleft arm is slowly extended diagonally upward to the front left, andthe face and the eyes are turned diagonally upward to the left.
Regarding this movement, Plaintiff asserts that extending theright arm diagonally forward from the right side of the body
represents how Maunaleo (mother) is cherished by people, and thatholding up the left hand high represents how Maunaleo (mother) is
respected by people.

As such, in Choreography 17, one hand isextended to the side, and the same hand is extended diagonallyforward from the side, and later, the other hand is extended upward.
If the three ways in which the hand is extended are individuallyconsidered, the same choreographies can be found in similar
examples, but there is no example of the choreography in which112

these three ways of extending the hand are combined in such ways,
and since it cannot be said that the movement is normally assumablefrom the lyrics or from the theme, and since the movement is big fora movement that involves the entire body, it should be said that
there is an even more significant difference.

Meanwhile,

Defendant asserts that the ways in which the hand is extended arefound in similar examples, but Defendant's assertion is not such that
it affects the above determination.
c.

Accordingly, it can be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(E) He kamalei, kamahiwa pā i ka lani ē ka lani ēa.

"Kamalei" means "dear child" or "darling child", and "lani"means "heaven" (Exhibits Otsu 4, 36), and Plaintiff gives thetranslation, "respected and cherished as if to touch heaven".

b.

Choreography 17 consists of the following movements which
can be largely divided into the following two parts, namely, [i] theright arm is raised so as to create a space in the armpit, and is bent
at the elbow, and the right palm is turned down and the fingertips
are extended, and in that state, the right hand is placed horizontallyin front of the right chest, and with the right hand kept in the samestate, the left hand, with the palm turned down and the fingertips
extended, is moved to above the head from the state of being
extended diagonally forward to the left, and the left hand is loweredfrom above the head to behind the neck in such a way as to pass thefront of the left shoulder, and when the left hand is brought to thefront of the left chest, the left palm is turned down and the fingers
are lined up and extended, and the left palm and the right palm are
lined up in front of the chest to face each other in close proximity,
and the face and the eyes are turned to slightly lower right at first,
and at about the time when the left hand passes behind the neck, aremoved to the left side, and when the palms are lined up, they areturned to the direction pointed out by the fingertips, and [ii] thepalms are simultaneously turned over and turned towards the body,and the fingertips are extended upward, and in that state, both arms
are slowly and fully extended upward simultaneously in front of the
body until they are the same height, and the face and the eyes are
113

turned upward in line with the movement of both hands, and next,
with the fingertips extended, the palms are turned over to face front,
and with both palms facing front and kept at the same height, thearms are slowly lowered to the side of the body by passing the frontof the body, and the face and the eyes are lowered in line with the
movement of the hands, and are stopped in the state of facing thefront.
First, with regards to the movement of [i], Plaintiff asserts thathanging a lei over the body with the left hand represents how
Maunaleo (mother) is respected by people and cherished.

It isbelieved that this choreography of hanging a lei around the neckconsists of performing the hand motion for "lei" (Exhibit Otsu 4) as
the choreography for the lyric, "kamalei", which contains the soundof "lei".

However, given that the choreography indicated in thelower left corner of Exhibit Ko 46 is such that a different handmotion for "lei" (Exhibit Otsu 5), of shifting a hand from one
shoulder to the other shoulder, is performed in the image of gently
touching the lei which is hung around the neck, it is acknowledgedthat there is a similar example in which the hand motion for "lei" isperformed as the choreography for the lyric, "kamalei", whichcontains the sound of "lei".

In that case, the movement of [i] ismerely such that, based on the interpretation of a lyric for which
other similar examples exist, one of the hand motions corresponding
to the interpretation is used (above (1) E), so that it cannot be
acknowledged that the use of such choreography for the lyric here
shows Plaintiff's personality.
Next, with regards to the movement of [ii], Plaintiff asserts thatslowly holding up both hands from the front of the chest towards the
sky represents "heaven" (to be loved by God).

However, the handmotion for "lani" (heaven) is to raise both hands high, join them
together and then spread them out (Exhibit Otsu 4), and extend thehands upward, and later cross the hands and then open them (Exhibit
Otsu 5), and the other choreographies of Exhibit Ko 46 also include
the movement of holding up both hands and crossing them.

With

regards to the movement of [ii], it is different from those otherchoreographies in that the hands are neither joined nor crossed after
114

they are extended, but it should be said that this is a minor
difference in a movement which is basically the same in terms of themeanings of the lyrics and the existing choreographies, so that it
cannot be acknowledged that this difference is significant.
c.

Accordingly, it cannot be evaluated that the choreographies

corresponding to the lyrics here show Plaintiff's personality.
(F) Interludea.

Choreography 17 consists of the following movements which
can be largely divided into the following two parts, namely, [i] theleft arm is lowered and lightly holds the skirt, and the right arm islightly bent at the elbow and is extended to the front, and the rightpalm is turned down, and as the fingertips of the right hand areextended to the front, the right arm slowly makes a motion of"shake" once, and the face and the eyes are turned diagonallyforward to the right, and [ii] the left arm is raised so as to create aspace in the armpit, and the left arm is bent at the elbow, and the left
palm is turned down and the fingers are extended, and in that state,
the left hand is placed horizontally in front of the chest, and theright arm is lowered and lightly holds the skirt.

The face and theeyes are turned diagonally forward to the left.
First, regarding the movement of [i], it is the same as thechoreography indicated in the lower right corner of Exhibit Ko 26,
which is one of the choreographies for the intro of "Lei Ho' oheno",
which is the song corresponding to Choreography 11.
Next, regarding the movement of [ii], it is the same as thechoreography of Exhibit 35-10.
b.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the interlude here show Plaintiff's personality.

(G) He aloha nō 'o Maunaleo, I lohia e ke kilihune, Kohu 'ahu'ao no ka uka,
He kamalani kamaehu kau i ka hano ē, He kamalei, kamahiwa pā i ka
lani ē, ka lani ē; the interlude
The same as the interlude in the above (A) to (F).
(H) Po'ohina i ka 'ohu koloa.

"Po'o" means "head", "hina" means "white-haired", "ohu" means"fog", "kolo" means "to crawl" (Exhibit Otsu 36), and Plaintiff gives
the liberal translation, "being covered with silver fog".
115

b.

Choreography 17 consists of the following movements which
can be largely divided into the following two parts, namely, [i] botharms are raised so as to create a space in the armpit, and are bent at
the elbow, and fingertips of both palms are extended, and both
palms are turned inward on both sides of the head, and both palms
are applied to the hairline on the sides of the temples once, and withboth palms turned over so that they face inward, both arms are
slowly extended upward at the same time, and the face and the eyes
are turned diagonally upward to the front, and [ii] in the position
that is diagonally upward to the front of the face, both palms arelightly opened, and after the right palm is placed slightly above theleft palm, the top and bottom positions of both palms are reversed
two times in such a way as to rotate the palms, and while doing so,
the right and left feet alternately take two steps each to the left so as
to make a 360-degree turn counterclockwise, and the face and theeyes are kept turned diagonally upward to the front.
First, with regards to the movement of [i], Plaintiff asserts that
placing both hands to the forehead and brushing the hands along thearea around the hairline represents the mother's hair having turned
silver.

However, this movement is the same as the choreography

indicated in the lower left corner of Exhibit Ko 46.
Next, with regards to the movement of [ii], Plaintiff asserts thatmaking a turn while rotating both hands represents how the highareas of the mountain are covered by fog.

However, the movementof holding up both hands and rotating them is the same as thechoreography indicated in the lower left corner of Exhibit Ko 46,
and since, in Exhibit Otsu 35-11, the same movement is performed
as the body makes a turn, it is acknowledged that there is a similar
example.

Meanwhile, Plaintiff emphasizes the difference of thepresence or lack of a turn, but in light of what is described above,
such assertion cannot be accepted.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(I) Kahiko no ka poli 'olua.

"Kahiko no ka" means "decorative ornament", "poli 'olu" means"calm mind" (the entire import of the oral argument), and Plaintiff
116

gives the translation, "ornament that decorates a calm mind".
b.

Choreography 17 consists of the following movements which canbe largely divided into the following two parts, namely, [i] the rightarm is raised so as to create a space in the armpit, and is bent at the
elbow, and with the right palm turned towards the body and thefingers extended, the right hand is placed in front of the right chest,
and the left arm is raised so as to create a space in the armpit, and isbent at the elbow, and with the left palm turned towards the bodyand the fingertips extended, the left hand is placed to the back of theneck, and later, the positions of the left hand and the right hand arereversed, and the same movement is performed by the opposite side,and the face and the eyes are turned diagonally downward to theright, and then diagonally downward to the left, in line with the
movement of both hands, and [ii] the left arm is raised so as tocreate a space in the armpit, and is bent at the elbow, and with theleft palm turned towards the body and the fingertips extended, theleft hand is placed in front of the left chest, and when doing so, theright arm is raised so as to create a space in the armpit, and is bent
at the elbow, and with the right palm turned towards the body andthe fingertips extended, the right palm is placed above the left palm
once, and later, the right palm is placed underneath the left palm,
and the face and the eyes are turned to the direction of both hands(slightly diagonally downward to the front), which are placed in
front of the chest.
First, with regards to the movement of [i], Plaintiff asserts that
placing one hand in front of the chest and the other hand behind theneck, alternately with both hands, represents the state of being
decorated with ornaments such as a lei.

Since this movement is notassumable from the lyrics (although "kahiko" [ornament] is related
to "lei", which is a type of ornament, the movement here is also
different from the hand motion for "lei" (Exhibits Otsu 4, 5)), and isalso not found in similar examples, it is acknowledged that the
movement is original to Choreography 17.

Meanwhile, Defendant

asserts that the movement is the same as the existing hand motion
for "lei".

However, the hand motion for "lei" consists of hanging a

lei around the neck (Exhibit Otsu 4) and moving a hand from the left117

shoulder to the right shoulder in an image of gently touching the lei
which is hung around the neck (Exhibit Otsu 5), so that it can besaid that the movement of [i] is different from the foregoing, andsince it also cannot be said that the movement is a minor
arrangement of the foregoing, Defendant's assertion cannot be
accepted.
Next, with regards to the movement of [ii], Plaintiff asserts that
placing both hands in front of the chest (representing "poli" or heart)
represents the ornament being given with love.

However, themovement of placing both hands in front of the chest is the same as
the choreography indicated in the lower left corner and lower rightcorner of Exhibit Ko 46, and as for the choreography indicated in
the lower left corner of Exhibit Ko 46, the difference with the
movement of [ii] is unnoticeable even with regards to the point ofreversing, by turning both hands, the top and the bottom positions of
the hands which are placed in front of the chest.
c.

Accordingly, of the choreographies corresponding to the lyrics
here, the movement of [i] is original to Choreography 17 and it canbe evaluated that Plaintiff's personality is shown, but it cannot b eevaluated that the movement of [ii] shows Plaintiff's personality.

(J) Apo 'ia e nā kualonoa.

"Apo" means "to surround", and "kualono" means "territory near
the mountain top" (Exhibits Otsu 36, 54), and Plaintiff gives theliberal translation, "cradled in the surrounding ridges".

b.

Choreography 17 consists of the following movements which
can be largely divided into the following two parts, namely, [i] thefingertips of the right palm are extended, and the right arm islowered to the side of the body, and the fingertips of the left palm
are extended and directed downward, and in that state, the left arm
is extended straight, slightly diagonally forward to the left, and theface and the eyes are turned to the direction pointed out by the left
hand, and after the left arm is fully extended, the right arm isquickly bent at the elbow, and as the body is turned from the right tothe direction that is backward to the right, the right arm is also bent
at the same time, and while doing so, with the body turned to theback, and with both palms turned inward and the fingertips extended,118

the arms are crossed in front of the chest, and [ii] with the fingertipsof the left palm extended and facing the front of the body, the left
arm is extended diagonally upward to the front, and with thefingertips of the right palm also extended to face front, the right arm
is extended diagonally upward to the front, and in doing so, the rightarm is lightly bent at the elbow, and the right palm is placed in aposition slightly below the left palm (around the front of the face),and the face and the eyes are turned towards the fingertips of both
hands, and these series of movements are performed while the bodyis turned to the opposite side of the front (diagonally backward to
the left).
First, with regards to the movement of [i], Plaintiff asserts that
extending the left hand and changing the direction of the body
represents the state of being surrounded and embraced.

However,

this movement is the same as the choreography indicated in thelower left corner of Exhibit Ko 46 and the choreography of Exhibit
Otsu 34-2.
Next, with regards to the movement of [ii], Plaintiff asserts thatholding up both hands with the body turned back represents theridges of Maunaleo.

The movement of holding up both hands isalso found in Exhibits Otsu 34-3 to 34-5, but the movement being
performed while the body is facing the side that is opposite to thefront is a unique example, as shown by glancing through various
choreographies shown by the evidence of the present case, and it
should be said that this difference is significant.
c.

Accordingly, of the choreographies corresponding to the lyrics
here, it cannot be evaluated that the movement of [i] shows
Plaintiff's personality, but it can be evaluated that the movement of[ii] shows Plaintiff's personality.

(K) He hi'ina, hi'alo, aloha ēa.

"Hi'i" means "to cradle (a child, etc.) against the chest", and"aloha" means "to love" (Exhibits Otsu 33, 36), and Plaintiff gives
the liberal translation, "by holding, being near, and loving theperson".

b.

Choreography 17 consists of the following movements which
can be largely divided into the following two parts, namely, [i] the119

body is turned diagonally forward to the left, and the right arm isextended straight, diagonally forward to the left, and when the arm
is fully extended, the right hand quickly makes a fist once as if tograb something, and later, the right arm is bent at the elbow, and theright palm lightly makes a fist, and in that state, the right hand isplaced in front of the chest.

The left arm, lightly bent at the elbow,

is lowered, and lightly holds the skirt, and the face and the eyes areturned towards the right hand, and are moved in line with the
movement of the right hand, and [ii] with the left hand kept in thesame state, the right arm is lightly bent at the elbow, and as the rightpalm is opened, the palm is turned upward with the fingertips
extended, and in that state, the right arm is once again extended
diagonally forward to the left, and is moved to a position that is
diagonally forward to the right as if to circle the front of the body,and in doing so, the face and the eyes are turned to the directi on
pointed out by the right hand as in the immediately preceding
movement, and are moved to the right from the left in line with the
movement of the right hand.
Regarding the above, Plaintiff asserts that the movements ofturning the direction from the immediately preceding movement,
which represents the state of being surrounded by ridges, andextending the right hand and making the movement of grabbing
something, which is then brought to the chest (heart), represent the
feeling of love towards someone.
First, with regards to the movement of [i], the movement is thesame as the choreography of Exhibit Otsu 35-8, except for thedifference of whether or not the hand, which is brought to the chest,
makes a fist, and it cannot be said that this difference is significant.
Next, with regards to the movement of [ii], since the movement
is the same as the choreography for "aloha" (movement of [i] in theabove C (J)) of "Ke aloha i ka 'ohu, e Papakōlea" in thechoreography indicated in the lower left corner of Exhibit Ko 51 forthe song (Ua Lanipili I Ka Nani O Papakōlea) corresponding toChoreography 13 (above C), it is acknowledged that the movement
is assumable from the lyric of "aloha".

Meanwhile, Plaintiff

emphasizes the difference of whether or not a fist is made by the120

hand which is brought to the chest, but since the difference involves
a minor part for a body movement, Plaintiff's assertion cannot be
accepted.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's personality.

(L) Hi'ipoli, hi'ilei, hi'ilani ē hi'ilani ēa.

"Hi'i" means "to cradle (a child, etc.) against the chest", "lei"means a "wreath" (worn on the head or around the neck), a
figurative expression for "beloved child/wife/husband/lover/younger
brother/younger sister", and "lani" means "heaven" (Exhibits Otsu 4,36), and Plaintiff gives the liberal translation, "loved from the heart,and cherished and noble".

b.

Choreography 17 consists of the following movements which
can be largely divided into the following two parts, namely, [i] thebody is turned diagonally forward to the left, and the left arm isextended diagonally forward to the left, and when extended fully,
the left hand quickly makes a fist once as if to grab something, andthe left arm is bent at the elbow, and with the left palm lightly
making a fist, the left hand is placed in front of the chest, and theright arm, which is lightly bent at the elbow, is lowered and lightly
holds the skirt, and the face and the eyes are turned towards the left
hand, and are moved in line with the movement of the left hand, and[ii] with the right hand kept in the same state, the left palm is
opened and turned towards the body, and with the fingertips
extended, the left arm is extended straight upward, and the face andthe eyes are turned towards the left hand, and are moved upward inline with the movement of the left hand, and with the right hand
kept in the same state, the left palm is turned over to face front, andthe left arm is slowly lowered to the side of the body by passing thefront of the body, and the face and the eyes are lowered in line withthe movement of the left hand, and the movement is stopped when
the face and the eyes face front.
First, with regards to the movement of [i], extending the left
hand and once again grabbing something, which is then broughtcloser to the chest (heart), represents the deep love for the mother.
However, the movement is the same as the choreography of Exhibit
121

Otsu 35-8, except for the difference of whether or not the hand,which is brought to the chest, makes a fist, and since the differenceis unnoticeable and involves a minor part, it cannot be said that thisdifference is significant.
Next, with regards to the movement of [ii], Plaintiff asserts that
extending the left arm in the direction of heaven represents the
feelings of gratitude for the loved one, and from there, by lowering
the raised left arm, it guides to the next movement.

The handmotion for "lani" (heaven) is to raise both hands high, join them,and then spread them out (Exhibit Otsu 4), and to extend the hands
upward, and later, cross the hands and then open them (Exhibit Otsu
5), and the choreographies of Exhibits Otsu 34-3 and 34-5 are thesame in that both hands are held up high.

On the other hand, themovement of [ii] is different in that only one hand is held up, but
doing the same movement with one hand or with both hands ismerely a commonplace change, and this change, too, cannot be
consideredasignificant

difference.

Meanwhile,

Plaintiffemphasizes the differences from other choreographies, but in lightof what is described above, such assertion cannot be accepted.
c.

Accordingly, it cannot be evaluated that the choreography
corresponding the lyrics here shows Plaintiff's originality.

(M)

Interlude
The same as described in the above (F).

(N) Po'ohina i ka 'ohu kolo, Kahiko no ka poli 'olu, Apo 'ia e nākualono, He
hi'ina, hi'alo, aloha ē, Hi'ipoli, hi'ilei, hi'ilani ē, hi'ilani ē; the interlude
The same as described in the above (H) to (M).
(O) Eia ku' u lei alohaa.

"Ku'u" means "my" (Exhibit Otsu 54), "lei" means "wreath"(worn on the head or around the neck)", a figurative expression for"beloved child/wife/husband/lover/younger brother/younger sister",and "aloha" means "to love" (Exhibits Otsu 33, 54), and Plainti ff
gives the translation, "this is my precious lei".

b.

Choreography 17 consists of the following movements which
can be largely divided into the following two parts, namely, [i] withthe left hand and the left arm in the same state as the immediately
preceding movement, the right arm is raised so as to create a space122

in the armpit, and is bent at the elbow, and the right palm is opened
and directed downward, and is placed in front of the chest, and indoing so, the fingertips of both palms are extended and lined up
horizontally in front of the chest, so that the fingertips of both hands
just about touch each other, and [ii] both palms are simultaneously
turned inward, and with both hands lined up, both arms are
simultaneously extended upward, and are put behind the back of thehead, and then both arms are lowered to the chest by respectively
passing the front of the shoulders, and the face and the eyes areturned to the direction pointed out by the hands, and are moved
upward from the front of the chest in line with the movement ofboth hands, and when both hands are lowered to the shoulders, they
are turned slightly downward to the left.
Regarding these movements, Plaintiff asserts that holding up
both hands from the position in front of the chest, and lowering
them from the back of the neck by passing the front of the shoulders,
represents the very deep love, of how much the person, over whosebody the lei is hung, is loved.
First, with regards to the movement of [i], it is the hand motion
for "wau" or "au" (I) (Exhibit Otsu 3), of turning the palms towards
the dancer in front of the chest.

Given that the meaning of the lyric"ku'u" is the same as the meaning of "wau" or "au", it isacknowledged that the movement is assumable from the lyric, andthe same movement is also found in the choreography indicated in
the lower right corner of Exhibit Ko 35.
Next, with regards to the movement of [ii], the hand motion for"lei" (Exhibit Otsu 4), of hanging a lei around the neck, is
performed with both hands, and this movement is the same as thechoreography of Exhibit Otsu 34-4 and the choreographies of
Exhibits Otsu 35-6 to 35-7 and 35-11.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's originality.

(P) No Maunaleo i ka nania.

"Maunaleo" is the name of a mountain, "nani" means "beautiful"(Exhibit Otsu 54, the entire import of the oral argument), andPlaintiff gives the translation, "beautiful Maunaleo".
123

b.

Choreography 17 has the movement in which the body is turned
diagonally forward to the right, and with both hands lined up, botharms are simultaneously extended straight to the front of the hip,and the fingertips are extended and the palms are turned down, andnext, both palms are simultaneously turned over to face front, andare slowly opened horizontally in both directions in the area aroundthe front of the chest, and the face is turned to the direction pointed
out by both hands, and when both hands are opened horizontally inboth directions, they are directed diagonally upward.
Regarding these movements, Plaintiff asserts that horizontally
opening both arms in front of the chest represents the foot of themountain, and turning the direction of the eyes upward represents
the strength, grandeur, and beauty of Maunaleo.

However, thesame movement is also performed, in the posture of sitting with one
knee drawn up, in the choreography indicated in the lower rightcorner of Exhibit Ko 46 for the choreography corresponding to the
lyric of "Maunaleo" in the lyrics, "He aloha nō 'o Maunaleo", in theabove (A), which are the same lyrics as the lyrics here.

Themovement of [ii] in which the same movement is performed in the
posture of standing up is merely a commonplace change, and it
cannot be said that there is a significant difference in this respect, sothat it is acknowledged that the movement is assumable from the
lyric of "Maunaleo".

Meanwhile, Plaintiff emphasizes whether or

not the movement is performed in the posture of fully standing up,
but since, as a posture, the posture of standing up is, if anything,more normal, and since it cannot be said that the posture creates asignificant difference, Plaintiff's assertion cannot be accepted.
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's originality.

(Q) 'Ohu'ohu i ka Māliea.

"Ohu" means "fog", and "Mālie" means "wind of Mālie"(Exhibit Otsu 36, the entire import of the oral argument), andPlaintiff gives the liberal translation, "being admired by the wind of
Mālie".

b.

Choreography 17 consists of the following movements which
can be largely divided into the following two parts, namely, [i] the124

body is turned to face front, and the left arm is slightly raised so as
not to create a space in the armpit, and is bent at the elbow, and thefingers of the left hand are lined up and extended, and the fingertips
are turned towards the body, and the left hand is brought to the areaaround above the left shoulder, and at the same time, the right arm islightly raised so as not to create a space in the armpit, and is bent at
the elbow, and the fingers of the right hand are extended, and as theright palm is turned towards the body, it is brought to the front of
the left shoulder, and next, the positions of the right hand and theleft hand are reversed, and the same movement is performed by the
opposite side, and in doing so, the face and the eyes are moved to
the right from the left in line with the positions of both hands, and[ii] from around the hip height to above the head, with both elbows
bent lightly and with the fingertips of both palms extended, the arms
are raised upward, by swaying alternately in the order of the rightarm, the left arm, and the right arm, as if to draw a semicircle,
circling inwardly upward from below and the face and the eyes are
moved upward from below in line with the movement of both hands.
First, with regards to the movement of [i], Plaintiff asserts that
placing both hands alternately on the shoulders represents how fog
hangs over Maunaleo as if a lei hangs over the mountain.

It isacknowledged that this movement is the hand motion for "lei"(Exhibit Otsu 5), of shifting a hand from one shoulder to the othershoulder in an image of gently touching the lei, which is hungaround the neck.

The choreography of making the movement of"lei" in the place for the lyric of "ohu'ohu" (fog) is not derived fromthe lyrics.

However, given that the choreography of Exhibit Otsu

34-3 is such that a different hand motion for "lei" (Exhibit Otsu 4),of hanging a lei around the neck, is performed, it is acknowledgedthat there is a similar example for performing the hand motion for"lei" in the choreography of the lyric for "'ohu".

In that case, since

the movement of [i] is merely such that, based on the interpretationof a lyric for which other similar examples exist, one of the handmotions corresponding to the interpretation is applied (above (1) E),
it cannot be acknowledged that applying such choreography shows
Plaintiff's originality.
125

Next, with regards to the movement of [ii], Plaintiff asserts thatraising both hands in such a way as to rotate them represents how
the gentle wind is blowing up.

The hand motion for "makani"(wind), which is related to the lyric of "Mālie" (wind of Mālie), issuch that both hands are extended, with one hand rotating on the
swirl of the head as if to draw an image of tide there, and that, inorder to represent a strong wind or storm, both hands are raised
above the head and rotated there in a big motion (Exhibit Otsu 3),
and the choreography indicated in the upper right corner of Exhibit
Ko 46 also shows the same movement as this hand motion.
However, the movement of [ii] is such that the arms are raised, inthe order of the right arm, the left arm, and the right arm, byalternately swaying them as if to draw semicircles, with the arms
turned inwardly from bottom to above, so that there is a differencein the movement of the entire body, and it is acknowledged that the
impression given by the difference is significant.

Accordingly,

from among the choreographies which are created in the image ofwind, it is reasonable to acknowledge that the movement of [ii] isoriginal to Choreography 17.
c.

Accordingly, of the choreographies corresponding to the lyrics
here, while it cannot be evaluated that the movement of [i] shows
Plaintiff's originality, since the movement of [ii] is original toChoreography 17, it can be evaluated as showing Plaintiff's
originality.

(R) He kamalani kamaehu kau i ka hano ē, He kamalei, kamahiwa pā i ka
lani ē, ka lani ē; the interlude
The same as the above (D) to (F).
(S) Eia ku'u lei aloha, No Maunaleo i ka nani, 'Ohu'ohu i ka Mālie, He
kamalani kamaehu kau i ka hano ē, He kamalei, kamahiwa pā i ka lani ē
The same as the above (O) to (Q) as well as (D) and (E).
(T) No Maunaleo ke aloha kū i ka la'i ē
a.

"Maunaleo" is the name of a mountain, "aloha" means "to love",and "la'i" means "silence" (Exhibit Otsu 33, the entire import of theoral argument), and Plaintiff gives the liberal translation, "Maunaleo
has the tranquility of deep love".

b.

Choreography 17 consists of the following movements which126

can be largely divided into the following three parts, namely, [i]with the fingertips of both palms extended and the palms facing
front, both arms are extended upward, and the right arm is lightly
bent at the elbow, and the right palm is placed slightly below the left
palm, and the face and the eyes are turned towards both hands, and[ii] both palms are turned over towards the body, and both elbows
are bent at the same time, and both hands are crossed in front of thechest, and [iii] both palms are turned down, and as the elbows arebent lightly, both arms are extended forward at hip height, and at hipheight, with both palms kept turned down, both hands are slowly
opened horizontally in both directions, and the face and the eyes areturned towards the left hand.
First, with regards to the movement of [i], Plaintiff asserts thatholding up both hands high represents Maunaleo towering high.
However, the movement is the same as the choreography of Exhibits
Otsu 35-6 and 35-8.
Next, with regards to the movement of [ii], Plaintiff asserts thatcrossing the hands in front of the chest represents the deep love for
Maunaleo (mother).

However, this is the hand motion for "aloha"(love) (Exhibit Otsu 5), of crossing the hands in front of the chest.
As for the movement of [iii], Plaintiff asserts that extending both
hands forward at hip height, and with palms turned down, slowly
spreading out both hands horizontally in both directions, represents
silence.

However, given that the hand motion for "mālie" (quiet),which has the same meaning as "la'i" (silence) here, consists ofspreading out both hands in a downward direction (Exhibit Otsu 26),
it is acknowledged that the movement is assumable from the lyric of"la'i".
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's originality.

(U) Aloha ē, aloha ēa.

"Aloha" means "to love" (Exhibit Otsu 33), and Plaintiff gives
the liberal translation, "you, whom I love, are very dear to me".

b.

Choreography 17 consists of the following movements which
can be largely divided into the following four parts, namely, [i] theleft arm is raised so as to create a space in the armpit, and with the127elbow bent, the palm is turned down and the fingertips are extended,and the left hand is placed in front of the left chest, with the palm
turned up, and the right arm is raised so as to create a space in thearmpit, and with the elbow bent, the palm is turned down and thefingertips are extended, and the right hand rotates once around theleft hand which is placed in front of the left chest, and as the rightpalm is turned up, the right arm is extended diagonally forward to
the right in such a way as to circle the front of the body, and theface and the eyes are directed towards both hands (slightly
downward to the left) first, and are turned diagonally forward to theright when the right hand is extended diagonally forward to the right,
and [ii] with the right hand kept in the same state, the left arm israised so as not to create a space in the armpit, and is bent at the
elbow, and the fingertips of the left palm are extended and areplaced to the mouth once, and then with the left palm turned up, theleft arm is extended straight, diagonally forward to the left, and theface and the eyes are turned diagonally forward to the left, and [iii]the left arm is raised so as to create a space in the armpit, and withthe elbow bent, the palm is turned down and the fingertips areextended, and the left hand is placed in front of the left chest and theleft palm is turned up.

The right arm is raised so as to create aspace in the armpit, and with the elbow bent, the right palm isturned down and the fingertips are extended, and the right handrotates once around the left palm, which is placed in front of the left
chest, and as the right palm is turned up, the right arm is extended
diagonally forward to the right as if to circle the front of the body,and the face and the eyes are turned towards both hands (slightly
downward to the left), and are turned diagonally forward to the rightwhen the right hand is extended diagonally forward to the right, andthis series of movements are performed while the body makes a turnrightward, and [iv] with the right hand in the same state, the left arm
is raised so as not to create a space in the armpit, and is bent at the
elbow, and the fingers of the left palm are extended and are placed
once to the mouth, and with the left palm turned up, the left arm isextended straight, diagonally forward to the left, and the face andthe eyes are turned diagonally forward to the left.
128Regarding these movements, Plaintiff asserts that both the
movement of turning an arm in front of the chest and extending theright hand diagonally forward to the right, and the movement ofplacing the left hand to the mouth once and extending it forward to
the left represent "everlasting love".
First, with regards to the movement of [i], the samechoreography is found in the interlude in the choreography indicatedin the lower left corner of Exhibit Ko 35, and the choreography
indicated in the lower left corner of Exhibit Ko 51, which is one of
the choreographies corresponding to the interlude (above C (C)) of
the song (Ua Lanipili I Ka Nani O Papakōlea), which corresponds toChoreography 13 (above C), is also the same.

Given that the outro

follows immediately after the part, "Aloha ē, aloha ē", it isacknowledged that the movement is assumable from the lyrics.
Next, with regards to the movement of [ii], the movement is thesame as the hand motion for "aloha" (Exhibit Otsu 3), of extending ahand forward after it is placed to the mouth.
As for the movement of [iii], the movement is such that theabove movement of [i] is performed while making a turn.

While

the movement here is devised in such a way so that it does not
become a mere repetition of the same movement as the movement of[i], it cannot be said that combining a normal turn so as to create a
difference constitutes a significant difference.
Furthermore, with regards to the movement of [iv], it is the sameas the movement of the above [ii].
c.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the lyrics here show Plaintiff's originality.

(V) Outroa.

Choreography 17 consists of the following movements which
can be largely divided into the following three parts, namely, [i] theleft arm is lowered and lightly holds the skirt, and the right arm islightly bent at the elbow and is extended to the front, and the rightpalm is turned down, and as the fingertips of the right hand areextended to the front, the right arm slowly makes a motion of"shake" once, and the face and the eyes are turned diagonallyforward to the right, and the left arm is raised so as to create a space129

in the armpit, and the left arm is bent at the elbow, and with the left
palm turned down and the fingertips extended, the left hand isplaced horizontally in front of the left chest, and the right arm islowered and lightly holds the skirt, and the face and the eyes areturned diagonally forward to the left, and [ii] the body is turned to
the right, and the fingertips are extended and the left palm is turned
down, and in that state, the left arm is extended straight to the rightside at chest height, and when fully extended, the left arm makes amotion of "shake" (wavy motion) once, and in doing so, the face andthe eyes are turned to the left side of the body (the front side of thestage), and next, the body is turned to the left, and with thefingertips extended and the right palm turned down, the right arm isextended straight to the left side at chest height, and when fully
extended, the right arm makes a motion of "shake" (wavy motion)
once, and meanwhile, the face and the eyes are turned to the rightside of the body (the front side of the stage), and [iii] the body isturned diagonally forward to the right, and with the fingertips
extended and the palm turned down, both arms are extended, andwhen doing so, the arms are lowered to the area around the front of
the hip, and with the palms kept turned down, the palms are lined up
and placed parallel to each other and moved as if to be placed in thearea around the front of the hip, and then, both palms are turned
over so as to face front, and later, the palms are slowly spread out
horizontally in both directions, and in doing so, the face and theeyes are turned to the direction of both hands, and are then turned
diagonally upward.
First, with regards to the movements of [i] and [ii], Plaintiff
asserts that they represented the melody of the song by taking into
consideration factors such as the interpretation, image, tempo, andrhythm of the entire song.

However, since the movement of [i] is

the same as the interlude of the above (F), there is a similar example,
and as for the movement of [ii], it is the same as the choreographyof Exhibit Otsu 35-10.
Next, with regards to the movement of [iii], Plaintiff asserts thatit represents the foot of Maunaleo, which is the motif of the song.
However, since the movement is the same as the choreography for130

"Maunaleo" in the lyrics, "He aloha nō 'o Maunaleo" (above (A)),
which appear at the beginning, there is a similar example per se, andwhen the fact that the title of the song is "Maunaleo" is taken into
consideration, the selection of the movement for the ending is also
assumable from the theme.
b.

Accordingly, it cannot be evaluated that the choreographies
corresponding to the outro here show Plaintiff's personality.

(W)

Summary
As described above, Choreography 17 contains choreographies

which are completely original ((I) [i], (Q) [ii] [and (N), (S)]), andfurthermore, contains arrangements which are significantly different
from arrangements of other choreographies ((C) [i], (D), (J) [ii] [and(G), (N), (R), (S)]), so that when seen as a whole, Plaintiff's personality
is shown, and thus it is reasonable to acknowledge copyrightability for
the whole of Choreography 17.
2. Regarding Issue 2 (Whether or not there was assignment of copyright for
Choreographies or grant of right for permanent use)
According to the e-mail exchange between P2, who is a former employee ofDefendant, and Plaintiff's interpreter (Exhibit Otsu 138), it is acknowledged that in
December 2013, e-mails were exchanged in connection with the choreographies
which Plaintiff created for certain original songs, which were written by a third
party.

It is acknowledged that in the e-mails, the copyright for the songs andchoreographies was to be assigned to Defendant at a price of 3,000 dollars per
song.

However, as of the same month, agreement was not reached due to themonetary aspect of the negotiations.

Then, in an e-mail exchange on January 9,2014 (Exhibit Otsu 139), Plaintiff's side made a proposition as to both parties
keeping the copyright, but thereafter, it is not clear how the matter was eventually
determined, and it is also not clear whether any money was actually paid.
Also, even if the copyright for the songs was assigned, or the right forpermanent use was granted through these exchanges, it is not clear whether thesame is true of the Choreographies.
Furthermore, since there is no other evidence to sufficiently acknowledge thatcopyright was assigned or the right for permanent use was granted for th e
Choreographies, such assignment of copyright or grant of the right cannot be
acknowledged as a fact.
3. Regarding Issue 3 (Whether or not there is likelihood of Defendant playing
131the Songs or performing the Choreographies or having a third party performthe Choreographies)(1)
As indicated in the basic facts, Defendant denies copyrightability for
Choreography 6, etc., and it is acknowledged that Defendant has used
Choreography 6, etc. in events such as Ho'ike and for relevant practices evenafter November 1, 2014, which is the day following the day on which theConsulting Agreement with Plaintiff was ended.

Accordingly, there is

likelihood of Defendant using Choreography 6, etc. in the future as well.
Defendant asserts that, with regards to the parts where there are no lyrics, suchas the interlude, instructors do not use the same choreographies as
Choreography 6, etc., but instead, they dance freely and flexibly.

Even if thisis the case, it cannot be denied that there is likelihood of dance being
performed according to Choreography 6, etc., including in the interlude.
Next, as shown by the entire import of the oral argument, it isacknowledged that, in Ho'ike and other events as well as in relevant practices,
the representative of Defendant or instructors, who are members of KHA, may
perform hula dance, but in reality, those who perform hula dance are mostly
KHA's members.

Evidence (Exhibits Otsu 61 to 82, 84 to 134) and the entire

import of the oral argument show that [i] Ho'ike is a hula dance recital, and at
KHA, members who belong to each school practice the choreography of a song,by spending at least half a year, usually in one or two lessons per week, andperform the dance in front of members of other schools on the day of the HulaFestival which is held once a year by each region, and [ii] a competition is an
event in which schools belonging to KHA compete against each other, and thepractice of the relevant song starts at each school at least several months
before the competition (in addition to this competition, there is also a different
competition in which the schools, as a whole, compete against other groups
outside KHA, but such external competition has not been held since November
1, 2014), and [iii] a hula party is a party organized for each region at the end of
the year or at the start of a new year, and it is a casual event in which the main
focus is the stage on which KHA's members who attended the event dance
freely in tune with the music.

It is acknowledged that all of these events areorganized by KHA, which manages advance preparations as well as the
program and progress on the day of each event.

In light of the foregoing, it

can be evaluated that the performance of hula dance by KHA's members at
each event, including the practices beforehand, is carried out under the control
132

of KHA, and it is acknowledged that the presentation and interactions
pertaining to these events are carried out for the purpose of maintaining andincreasing KHA's members, so that it can be evaluated that the performance by
the members was caused by Defendant or KHA.
Accordingly, it is acknowledged that there is likelihood of Defendant
infringing on Plaintiff's copyright as a result of performing Choreography 6,
etc., or having its members perform the same.
(2)

On the other hand, regarding the Songs and Choreography 1, etc.,
Defendant asserts, on the premise of acknowledging Plaintiff's copyright, that
Defendant does not intend to use the songs and choreographies, either, and inreality, it is acknowledged that there has been no such use in events, including
Ho'ike, since November 1, 2014 (Exhibits Otsu 61 to 82, 84 to 134).
Accordingly, it cannot be acknowledged that there is likelihood of Defendant
playing the Songs or performing Choreography 1, etc., or having its members
perform Choreography 1, etc.

(3)

Based on the above, Plaintiff's demand for an injunction against the stage
performance of the Choreographies and the demand for an injunction against
the musical performance of the Songs are reasonable within the extent of
seeking an injunction against the performance of Choreography 6, etc.

4. Regarding Issue 4 (Whether or not there was copyright infringement by
Defendant pertaining to the Songs and Choreography 1, etc.)
As per the determination with regards to Issue 3 above, it is acknowledged that
Defendant performed Choreography 6, etc., or had its members perform the same,at Ho'ike and other events on or after November 11, 2014, which is the day
following the day on which the Consulting Agreement was ended.

Defendant

asserts that, with regards to the parts where there are no lyrics such as theinterlude, instructors dance freely and flexibly instead of using the samechoreographies as Choreography 6, etc.

Even if the choreographies for theinterlude are different from Choreography 6, etc., given that a hula dance is adance for representing the lyrics of a song, the significance of the choreographies
for the parts without lyrics is low, so that this fact does not provide basis for
exemption from copyright infringement.
On the other hand, it cannot be acknowledged that Defendant played the Songsand Choreography 1, etc. or performed the same, or had its members perform thesame on or after said date.
Accordingly, since the acknowledgment as to Defendant performing an act of133

copyright infringement on or after November 1, 2014 is limited to Defendant
performing, or having its members perform, Choreography 6, etc. (or the parts
other than the interlude), this shall be the premise for considering Defendant's
liability for compensation below.
5. Regarding Issue 5 (Whether or not there was intent or negligence on the partof Defendant)
In light of the background, as per the basic facts above, in which Defendant
performed Choreography 6, etc., in spite of the demand by Plaintiff to prohibit theperformance of the same, it should be said that it was possible to predict that theact of performing Choreography 6, etc. would infringe on Plaintiff's copyright, sothat it is acknowledged that, with regards to the act of copyright infringement forthe choreographies, there was at least negligence on the part of Defendant.
Meanwhile, Defendant asserts, on the basis of Defendant not having theconcrete awareness that Choreography 6, etc. have copyrightability, that it cannot
be said that Defendant was negligent in the act of copyright infringement for
Choreography 6, etc.

In fact, it is acknowledged that, as of October 2014,

Defendant obtained from an attorney-at-law a written opinion stating that inprinciple, there is no copyrightability to Plaintiff's choreographies of hula dances(Exhibit Ko 3).

However, P3, who used to serve as the general manager at

Defendant, had heard about there being an issue concerning whether or not it ispossible to perform the choreographies created by the kumu hula who no longer
teaches at Defendant's hula dance schools (Statement by Witness P3 , p. 28), andthus Defendant was aware of the issue of copyrightability concerning Plaintiff's
choreographies.

As such, under the circumstances in which the work of a danceis stipulated in law as one of copyrighted works (Article 10, paragraph (1), item(iii) of Copyright Act), and in which there is no finalized ruling which denied
copyrightability for choreographies of a hula dance, it should be said that the factof having obtained a written opinion from a single attorney-at-law shall notprovide basis for exemption from negligence.

Accordingly, Defendant's assertion

cannot be accepted.
6. Regarding Issue 6 (Amount of damages incurred by Plaintiff)(1) Content of Consulting Agreement and the purpose of professional feesA.

The parties are not in dispute over the fact that the Consulting
Agreement stipulates that if Defendant seeks advice concerning theteaching of hula dance to KHA's members, Plaintiff shall comply, and thatthe professional fees (1,000 dollars per month) include the purpose of134

compensation for the above instructions and advice.
On the other hand, while it is clear that Plaintiff had, from before, given
permission to KHA's members to play or perform the choreographies andsongs, which Plaintiff created, at events called Ho'ike (hula festival), hulaparties, and competitions, and at schools during the practices forparticipating at these events, it cannot be acknowledged that Plaintiff, uponconcluding the Consulting Agreement with Defendant, gave a clear consent
as to including, in the professional fees, the royalties forchoreographies and songs created or written by Plaintiff.

theFurthermore, itcannot be acknowledged that Plaintiff otherwise reached a clear agreementwith Defendant as to receiving payment of royalties for the choreographiesand songs, which Plaintiff created or wrote, in settings other than theConsulting Agreement.

Accordingly, the Issues involve whether theConsulting Agreement covers the grant of license for the use ofchoreographies and songs, and whether the professional fees include thepurpose of royalties for choreographies and songs.
B.

Accordingly, first of all, how Plaintiff gave advice to Defendant or to
KHA's members through Defendant shall be considered.

According toevidence (Exhibits Ko 63, 64) and the entire import of the oral argument,
the following is acknowledged.
(A)

At workshops which were organized by KHA about three or fourtimes a year, Plaintiff had its assistant(s) called "'alaka'i", who
accompanied Plaintiff from Hawaii, perform choreographies as Plaintiff
explained the choreographies and the song, for the assigned song whichis informed to the members in advance.

After the explanation,

Plaintiff provided instructions by way of responding to individualquestions from participants.
(B)

When Plaintiff came to Japan for workshops, Plaintiff also gave
instructions to KHA's members, who were to participate in competitions,on the choreographies to be performed at the competitions and on what
to wear for the competitions.

(C)

Plaintiff also gave advice and instructions, by e-mail and the like,on occasions other than the visits to Japan for workshops.

For

example, from July 2013 to October 2014, the instances in which
Plaintiff gave advice to Defendant or to KHA's members throughDefendant, on occasions other than workshops, totaled only five, during
135

which Plaintiff gave advice on songs, lyrics, costumes, and hairstyles
for external competitions, by e-mail (Exhibits Ko 66 to 71).
Of these instructions and advice, for those which were given atworkshops, Plaintiff individually concluded time and materials
contracts for each workshop, separately from the Consulting Agreement,
and received professional fees (the amount of which was 400 dollars perhour; Exhibit Ko 23-2) in exchange for the instructions.
are not in dispute regarding this point.

The parties

Next, since this concerns theabove (A), it is acknowledged that the instructions and advice under theConsulting Agreement pertain to the above (B) and (C).

Regardingthis point, Plaintiff's assertion can be interpreted as asserting that the
professional fees of the above (B) are also included in the professional
fees under the individual time and materials contracts per workshops.
However, according to Exhibit Ko 23-2, it is acknowledged that the
professional fees at workshops were calculated based on the number ofhours of lessons of each curriculum, so that Plaintiff's assertion cannot
be accepted.
Since the professional fees of the above (B) cover only the
instructions in-between the workshops, which are held approximately
three to four times a year, and the professional fees of the above (C)cover only the instructions and advice given during mere five instances
over a period of 16 months concerning matters which do not concern
the choreographies themselves, it is believed that there were months inwhich no instructions or advice was provided, whereas the professional
fees under the Consulting Agreement were fixed at 1,000 dollars permonth.

As such, the Consulting Agreement is like a so-called advisory

contract in which Plaintiff holds the continuous position of teachinghula dance to Defendant and KHA's members, and in which Defendant
can receive advice from Plaintiff when asked for advice as to teachinghula dance to KHA's members (Defendant, too, calls the Consulting
Agreement an "advisory contract" in Exhibit Ko 11).

Accordingly, it

is acknowledged that the professional fees under the Consulting
Agreement (1,000 dollars per month) are not the compensation for theaction per se of actually giving advice as described above, but are
instead more like advisory fees which cover the purpose ofcompensation for Plaintiff's holding the aforementioned position or for136

giving advice each and every time such request is made.
C.

Incidentally, according to Exhibit Ko 14, it is acknowledged that in thehula culture of Hawaii, choreographies for hula require deep understandingof the Hawaiian culture and of the nature in Hawaii, and can only becreated by a kumu hula, who has received long years of training under aprevious kumu hula and was recognized, and that it is not permissible to
make arrangements to choreographies or to use choreographies withoutauthorization.

Plaintiff was introduced in "Hula Jiten" (Encyclopedia on

Hula), which was issued in February 2006 (Exhibit Ko 9), as an amazing
kumu hula whose hālau, which Plaintiff founded, boasts the largest numberof students on the island of Kauai and who also achieves a high ranking at
the Merrie Monarch Festival.

A magazine called "Hula-no-okubukai-

miryoku-to-Hawaii-no-saishinjoho-wo-mansaishita-visualmagazine"(Visual Magazine on Profound Appeal and Latest Information about
Hawaii), which was issued in February 2008 (Exhibit Ko 8), contains anarticle in which Plaintiff was interviewed and introduced as the leading
kumu hula of the island of Kauai.

Even from the content of the assertions

made in the present case, it is acknowledged that Plaintiff has the creed ofgreatly valuing the disciplines of the hula culture of Hawaii, as describedabove, as a member of the kumu hula.
From what is described above, for Plaintiff, the fact of continuously
being in the position to teach hula dance to Defendant and KHA's members
means the following, as a whole; specifically, that Plaintiff, as a kumu hulaof modern hula, accepts Defendant or KHA as its own hālau, and grants theuse of the choreographies, which Plaintiff created, and provides
instructions and advice on the choreographies.

On the other hand, it isbelieved that, for Defendant, the fact that Plaintiff, who is a prominent
kumu hula as described above, is in the advisory position to provide
instructions means not only that KHA's legitimacy is justified, but also thatit enables KHA to make an appeal on the point that when a person joins
KHA, the person will be able to perform the choreographies and songs
created or written by Plaintiff, in addition to receiving instructions on
choreographies by Plaintiff in person, which is significantly advantageous
to Defendant, who is a profit-oriented business that pursues profits.

In

that case, it is reasonable to interpret the Consulting Agreement assomething more than just a mere an agreement which provides that, if
137

Defendant asks that Plaintiff give advice to KHA's members concerning
instructions on hula dance, Plaintiff shall comply, but instead as anagreement, which should be called, so to speak, a "kumu hula agreement",
which provides that Plaintiff shall act as the kumu hula for Defendant or
KHA, and that Defendant may broadly use the position and authority of
Plaintiff, who is a kumu hula.

Accordingly, it is reasonable toacknowledge that the professional fees not only include the purpose ofcompensation for Plaintiff being in the position of an advisor (kumu hula),
but also the following, as a set; namely, the purpose of compensation forbeing responded to every time the aforementioned advice is sought, on acase-by-case basis, and the purpose of compensation for having Plaintiff
create choreographies and write songs and being granted the right to use
the choreographies and songs.

Accordingly, since Plaintiff had notgranted to Defendant, free of charge, the right to use Choreography 6, etc.,
it is acknowledged that the damage, whose amount is equivalent to theroyalties, occurred as a result of the unauthorized use.
(2) Calculation of the amount of damages
A.

As described above in (A), the circumstance which should beemphasized the most upon calculating the amount equivalent to royalties in
the present case is that, under the Consulting Agreement, the professional
fees per month which cover the purpose of Plaintiff granting to Defendant
the right to use the choreographies and songs, which are created or written
by Plaintiff, is 1,000 dollars.

B.

Incidentally, Plaintiff asserts that the entire amount of the monthly
professional fee under the Consulting Agreement constitutes royalties.
However, as described above in (1), the Consulting Agreement covers
factors other than the grant of the right for use of the choreographies andsongs created or written by Plaintiff, so that it is acknowledged that the
royalties constituted a part of the monthly professional fee.
Next, Plaintiff asserts that since it is unlikely for Plaintiff to only grant
the right for use of choreographies, separately from the Consulting
Agreement under which Plaintiff is the kumu hula for Defendant, the entire
amount of the monthly professional fee should be the amount that isequivalent to the royalties.
Certainly, given that the Consulting Agreement is an agreement which
integrally promises that Plaintiff shall act as the kumu hula for Defendant138

and KHA, and that Plaintiff has the creed of emphasizing the hula cultureof Hawaii, it seems difficult to think of a circumstance in which Plaintiff
enters into an agreement which only provides for the grant of license forchoreographies and songs, independently from the activities of a kumu hula.
However, as is shown in the determination of Issue 2 above, between
December 2013 and January 2014, Plaintiff discussed with Defendant theamount of compensation for assigning to Defendant, in return forcompensation, the copyright for the choreographies created by Plaintiff or
for joint ownership of the same (which is substantively the same as theright for permanent use).

Accordingly, it is acknowledged that Plaintiff

was willing, depending on the terms and conditions, to give to Defendant
the right to freely use or dispose of the choreographies which Plaintiff
created and to use them economically, irrespective of whether Plaintiff will
be involved or give instructions as the kumu hula.

As such, it should besaid that the circumstance in which Plaintiff enters into an agreement which
only provides for the grant of license for choreographies and songs,
independently from among the activities of a kumu hula, was possible, andPlaintiff's assertion to the contrary cannot be accepted.
C.

In view of the above, upon considering the amount that is equivalent to
the royalties in the case of using the choreographies and songs, which werecreated or written by Plaintiff, in general (not restricted to Choreography 6,etc.), like in the case of the Consulting Agreement, it is acknowledged that
the Consulting Agreement contains various factors as described above, butsince it is a fundamental aspect of the business of hula dance schools,
which are operated by Defendant, for the members to be able to dance hula,it is acknowledged that the grant of license for choreographies accounts fora high percentage of the Consulting Agreement.

Next, since theinstructions and advice given under the Consulting Agreement were limited
to a small portion, of giving instructions by using opportunities such asworkshops and by e-mail, it is acknowledged that such instructions andadvice do not account for much of the entirety.

On the other hand, since it

is believed that the fact that Plaintiff, who is a prominent kumu hula, is in
the advisory position as an instructor, not only leads to the justification oflegitimacy of KHA but also enables Defendant to make an appeal on theopportunity to receive instructions on choreographies from Plaintiff, thecreator of the choreographies, in person, such fact considerably contributed139

to Defendant's ability to attract members, so that it is acknowledged that
this aspect accounted for a proportionate share of the entirety as well.
By taking these factors into consideration, and also in light of the
background in which Defendant continued to use Choreography 6, etc. inspite of Plaintiff's request to stop using the choreographies which Plaintiff
created, it is reasonable to acknowledge that the amount equivalent to theroyalties in the case of using the choreographies and songs overall, whichwere created by Plaintiff, is 700 dollars per month, and Plaintiff's assertion
cannot be accepted.
D.

Next, as described above in (1), while the monthly professional fee
under the Consulting Agreement was a fixed amount irrespective of thenumber of choreographies or songs, which were created or written by
Plaintiff, and which were performed or played for the month, or the numberof instance of performing or playing the same for the month, the damage
suffered by Plaintiff, which should be considered in the present case, isonly the amount that is equivalent to royalties for the specific act of
copyright infringement, or in other words, the amount that is equivalent to
the royalties pertaining to the performance of Choreography 6, etc. alone.
In view of this fact, it is not reasonable to consider that the entire amountof 700 dollars per month, as mentioned above, is the amount that isequivalent to the royalties in the present case, but instead, the amountshould be calculated in light of the state of performance of Choreography 6,
etc. among the state of performance by Defendant of the whole of thechoreographies which were created by Plaintiff.

Specifically, it isreasonable to consider that the amount that is equivalent to the royalties
pertaining to the unauthorized performance of Choreography 6, etc. in thepresent case shall be calculated, for the month in which unauthorized
performance took place, by the formula in which 700 dollars, or the amountthat is equivalent to the monthly professional fee, is multiplied by thepercentage of the number of instances of performance of Choreography 6,
etc. accounting for the number of all instances of performance ofchoreographies by Defendant for the month.
E.

In view of the above, the state of performance or playing of thechoreographies and songs which were created or written by Plaintiff,
including the Choreographies and Songs, at Ho'ike, hula parties, andcompetitions organized by KHA shall be considered for the period from140

November 2014 until October 2017, which Plaintiff asserts as the period
for demanding damages.

According to evidence (Exhibits Otsu 61 to 82,

84 to 134) and the entire import of the oral argument, as per the column of"Total Number of Choreographies and Songs Created or Written by
Plaintiff"

in

the

attached

Listof

Playing

andPerformanceof

Choreographies and Songs Created or Written by Plaintiff, it isacknowledged that the choreographies and songs, which were created or
written by Plaintiff, were played or performed in a total of 732 instances,
and as for the individual playing and performance of each Choreography
and each Song, there was a total of 90 instances for a total of six songs, as
per the column of "Choreography 6 (E pili mai)", the column of"Choreography 11 (Lei Ho'oheno)", the column of "Choreography 13 (UaLanipili I Ka Nani O Papakōlea)", the column of "Choreography 15(Blossom Nani Ho'i e)", the column of "Choreography 16 (Māpu Mau Ke'Ala)", and the column of "Choreography 17 (Maunaleo)" in the attached
List of Playing and Performance of Choreographies and Songs Created or
Written by Plaintiff.
First, the months which are colored in red in the column of "Month" inthe attached List of Playing and Performance of Choreographies and Songs
Created or Written by Plaintiff are the months in which any of theChoreographies and Songs was performed or played at least once at an
event held in the relevant month, so that they are months of infringement.
Next, the months which are colored in yellow in the column of "Month"in the attached List of Playing and Performance of Choreographies andSongs Created or Written by Plaintiff are the months in which no event washeld in the first place, and are the months in which, accordingly,
Choreographies and Songs were not at all performed or played at events,
but given that the members who were to participate in internal competitionsof KHA perform the choreographies, which will be performed in thecompetitions, for practice, usually at least several months in advance, it isacknowledged that the relevant months are the months in which
performance took place as practice for the "competitions", which arecolored in yellow in the column of "Event" in the attached List of Playing
and Performance of Choreographies and Songs Created or Written by
Plaintiff, so that it is reasonable to consider these months as months ofinfringement.
141

Furthermore, the months which are colored in blue in the column of"Month"intheattached

Listof

Playing

andPerformanceof

Choreographies and Songs Created or Written by Plaintiff are the months
in which no event was held in the first place, so that accordingly, none of
the Choreographies or Songs was performed or played, or the months inwhich events per se were held but in which Choreography 6, etc. were not
performed or played even once.

However, given that the members whowill participate in Ho'ike perform the choreographies, which are to be
performed at the Ho'ike, in schools for practice, usually at least six months
in advance, it is acknowledged that the relevant months are the months inwhich performance took place as practice for the "Ho'ike", which arecolored in blue in the column of "Event" in the attached List of Playing and
Performance of Choreographies and Songs Created or Written by Plaintiff,
so that it is reasonable to consider these months as months of infringement.
On the other hand, the months which are colored in green in the columnof "Month" in the attached List of Playing and Performance ofChoreographies and Songs Created or Written by Plaintiff are the months
in which events per se were held, but the Choreographies and Songs were
not performed or played even once.

Given that the Ho'ike that was held

most immediately after the month concerned was held at least six months
afterward, and that a party is a casual event which can be attended freely, it
is difficult to consider that participants would practice choreographies forsuch event, so that it can hardly be acknowledged that the months
concerned are months of infringement.
F.

In that case, for the period of compensation, from November 2014 until
October 2017 (36 months), the months of infringement constitute a total of
35 months excluding October 2015, and during the months of infringement,
the number of instances in which the choreographies and songs, whichwere created or written by Plaintiff, was performed or played was 726 (thenumber of instances calculated by subtracting six, which is the number of
instances of playing and performance in October 2015, from a total of 732
instances of playing and performance during the 36-month period from
November 2014 until October 2017), and of the foregoing, the number of
instances in which Choreography 6, etc. were performed is 90 (in October
2015, Choreographies and Songs were not performed or played).

In light

of the foregoing, it is reasonable to consider that the amount that is142

equivalent to the royalties for Choreography 6, etc. shall be 3,037 dollars(rounded down to the nearest one dollar), which is calculated bymultiplying 700 dollars by 35, which is the period of infringement, andthen multiplying the result by 90, which is the number of instances of
performance or playing of the choreographies and songs, which werecreated or written by Plaintiff, in proportion to 726, which is the number of
instances of performance or playing of the choreographies and songs,
which were created or written by Plaintiff (700 × 35 × (90 ÷ 726) ≒ 3,037).
Naturally, since Plaintiff demands this amount in Japanese currency,
conversion of the foreign currency to Japanese currency, based on theexchange rate on the date of conclusion of oral argument, is required (referto the Supreme Court Decision rendered by Third Petty Bench on July 15,
1975; Minshu Vol. 29, No. 6, page 1029).

Regarding this point, since it ispublic knowledge that the rate of foreign exchange (the central spot rate in
the Tokyo Market as announced by the Bank of Japan) as of May 15, 2018,
which is the day of conclusion of oral argument in the present case, was109.7 yen to the US dollar, the amount that is equivalent to royalties shallbe, when converted into Japanese yen, 333,158 yen (rounded down to thenearest one yen).

(3,037 × 109.7 ≒ 333,158)(3) Amount equivalent to attorney's fees
By taking into consideration all the circumstances which appeared in thepresent case, including the amount approved in the above (2) and the fact that
Plaintiff filed an additional action, to be combined with the action of thepresent case, seeking an injunction against copyright infringement by
Defendant, it is reasonable to acknowledge that the amount of damages for
attorney' fees having reasonable legally sufficient cause with the act of
copyright infringement by Defendant shall be 100,000 yen.
(4) Summary
From what is described above, Plaintiff's demand for damage compensationon the basis of copyright infringement is reasonable within the extent of
seeking payment of 433,158 yen as well as the delinquent charges arising
therefrom at the rate of 5% per annum for the period from November 1, 2017,
which is after the occurrence of the act of tort, until payment in full.
7. Regarding Issue 7 (Whether the Cancellation took place at a time that was
detrimental to Plaintiff) and Issue 8 (Whether or not there were unavoidable
grounds for the Cancellation)143

(1) Facts on which determination shall be based
According to the basic facts, evidence (other than the documentary evidence
which is especially listed, Statement by Plaintiff, and Exhibit Ko 39-2,
Statement by Witness P3, and Exhibits Otsu 29, 31, 38), and the entire importof the oral argument, the following facts are acknowledged.
A. State prior to the conclusion of T&M Contract(A) Method of operation by KHA
KHA has its headquarters and office in Kumamoto Prefecture, andbranch offices in the Kyushu region and the Chugoku region.

In

addition to teaching general members at the headquarters school,
general members are also taught at schools opened by instructors who
became certified as KHA's instructors, and membership fees arecollected from instructor members and general members (Exhibit Ko 2).
Also, separately from these routine instructions, KHA organizes
workshops, about three or four times a year, for which Plaintiff comesto Japan to give instructions in person as described above, and lesson
fees are separately collected for these workshops.

Also, KHA's policy

stated, in connection with withdrawal of membership, as follows.

"At

the Association, members use, teach, and dance the choreographies of
the Association.

If you withdraw your membership, you will no longer

be able to use or dance the Association's choreographies, for which the
Association has the master license for the songs" (Exhibit Ko 2).
(B) State of accounting concerning workshops
For workshops organized by KHA and KPDA for KHA's members,
Defendant earned the profit, which is calculated by subtracting
expenses from the lesson fees (= sales) collected from participants, andfor workshops organized by CSHA and KPDA for CSHA's members,
the Other Company earned the profit, which is calculated by subtracting
the same from the lesson fees (= sales) collected from participants.
The sales and the like from the workshops during the fall of 2012
and 2013, which were held for KHA's members, were as follows.
a. Sales pertaining to hula dance (workshops organized by KHA)(a) 2012 (Exhibit Otsu 44)-

Participants

-

Sales

350

8,346,000 yen(b) 2013 (Exhibit Otsu 45)144-Participants

-

Sales

356

8,703,500 yen

b. Sales pertaining to Tahitian dance (workshops organized by KPDA)(a) 2012 (Exhibit Otsu 58)-

Participants

-

Sales

218

3,035,000 yen(b) 2013 (Exhibit Otsu 59)-

Participants

-

Sales

199

2,790,000 yen

c. Cost of sales-

The cost of sales required for holding workshops in the fallof 2012 and 2013 for the workshops organized by KHA (bycombining those for hula dance and those for Tahitian dance)
was 5,682,700 yen (the entire import of the oral argument).

B. State after the conclusion of T&M Contract(A) Plaintiff's mistrust of Defendant
After Defendant's former representative passed away in October
2012 and was succeeded by his daughter who then became the current
representative of Defendant (Exhibit Ko 1), Plaintiff began to have asense of mistrust towards Defendant's management team which mainly
consists of Defendant's current representative and P3, who became thegeneral manager at Defendant in January 2012 (Statement by Plaintiff,
page 1, 12).

Also, Plaintiff began to feel that the amount ofcompensation paid by KHA is unreasonably low, and asked Defendant
for increase in compensation, but Defendant did not respond (Exhibit
Otsu 2; Statement by Witness P3, page 2).
(B) Conclusion of T&M Contract and issue of Document Exhibit Otsu 2 by
Plaintiff
In March 2014, Plaintiff was entrusted by Defendant to teach huladance and Tahitian dance at the Workshops, which were to be held by
KHA in the fall of the same year, and Plaintiff agreed (conclusion of
T&M Contract).
However, due to the circumstances described in (A), Plaintiff began
to think that Plaintiff cannot continue to teach hula dance and Tahitian
dance to KHA's members with the management team (Statement by
Plaintiff, page 1, 15).

As such, on June 18 of the same year, Plaintiff
145issued a document (Exhibit Otsu 2; hereinafter referred to as"Document Exhibit Otsu 2") to Defendant's current representative(Statement by Plaintiff, page 1; Statement by Witness P3, page 2, 14,
15).

Document Exhibit Otsu 2 indicates that although Plaintiff tried to

discuss the amount of compensation, Defendant did not respond, andindicated as follows.

"Such delay in response to me has led me tobelieve that your company no longer values my work, and I decided thatyour action towards me regarding this matter shows your disrespect forme", "I hereby submit my letter of resignation dated April 15, 2014, as
the kumu hula for the Kyushu Hawaiian Association and the supervisor
for KPDA", and "KHA demands that when its student leaves KHA, thestudent 'will no longer be able to teach the choreographies learned at
KHA', and I demand the same from P4, who is my student, and P4's
company.

I am no longer your kumu hula, so that from now on, you

may not use any of the choreographies for hula and Tahitian dances that
I taught you over the past 26 years".
In response, Defendant, who had found Plaintiff's demand forincrease in compensation and Plaintiff's day-to-day attitude to be
unfavorable, decided to dissolve the relationship with Plaintiff, with theWorkshops to be held in October of the same year being the last event.
Meanwhile, Defendant believed that Defendant was able to perform thechoreographies, which Plaintiff created and taught, even after theConsulting Agreement was ended (Statement by Witness P3, page 3).
(C) Issue of Document Exhibit Ko 36 by Defendant
By June 2014, the schedule for the workshops to be held in the fallof 2014 became concrete; for example, that, of the three songs for theWorkshops (A-1 to A-3), two of them would be those which werecreated and written by Plaintiff (Choreographies 2 and 3, and Songs 2
and 3), so that around the end of July of the same year, Defendant
prepared a document titled "Notice of 2014 Fall Workshops" (Exhibit
Otsu 24, Exhibit Ko 36; hereinafter referred to as "Document Exhibit
Ko 36") (Statement by Witness P3, page 2, 3).

Document Exhibit Ko

36 indicated the following message, as well as that the deadline forapplication was September 10 of the same year and the deadline forpayment was September 19 of the same year.

"It is mandatory for

instructors to attend at least one of the workshops, A-1 and A-2.
146

As

for the substitute instructors teaching at the headquarters school, pleasetake this opportunity to attend all workshops for the songs whose
requirements for attendance can be satisfied, so that you will be able tooffer higher quality lessons to your students".
In early August of the same year, Defendant sent Document Exhibit
Ko 36 to KHA's members (Statement by Witness P3, page 3).
(D) Distribution of Document Exhibit Ko 13 by Plaintiff's related personnela.

On July 27 of the same year, Plaintiff prepared a document thatstarts with "Dear Top Instructors of Kyushu Hawaiian Association"(Exhibits Ko 12, 13; hereinafter referred to as "Document Exhibit
Ko 13").
-

Document Exhibit Ko 13 contained the following.

"After the decease of the Chairman, P4 and P3 were newly
appointed as the Chairman and the Manager, respectively.

I

felt that this fact resulted in significant changes in the
direction of various matters for KHA's members andChairman P4's family.

Due to the company's big change indirection, I must suddenly inform you that I can no longer
remain as the kumu hula for the top instructors and KHA's
members.

The direction which the company plans to pursue

is not at all what I agree with, and as a kumu hula, I had tomake up my mind that I cannot work in an environment thatis disturbing, unpleasant, and distressing.

In the unhealthyand distressing environment which was brought about by the
personnel selection of the Manager by Chairman P4, I can nolonger remain with KHA.

I shall humbly give up my post

as the kumu of the Kyushu Hawaiian Association."-"In connection with my departure from KHA, I asked P4,
who is the chairman of KHA, to please stop using thechoreographies which I kept providing to KHA over the past
26 years.

This resolution as to ‘prohibiting the use ofchoreographies’ is not intended to hurt KHA's members.

I

had to say this because once I leave KHA, I will no longer beable to give sufficient instructions to you concerning mychoreographies.

I would like KHA's members and all otherrelated personnel to truly understand that I am the creator ofthese choreographies as well as the person in charge of them.
147

This decision reflects my heartfelt sentiment, and I had tomake this decision because of the deep feelings I havetowards hula and its culture.

As the kumu hula of KHA, I

have admired and loved you all.

Please understand that thedecision I made is not intended to abandon you.

I simplywant to protect the creativity which I value from the heart
towards my creation of choreography and the right vested
therein."-"This request shall be implemented from November 1, 2014.
In the event that this request is ignored by Chairman P4 or
any other person, I am determined to take countermeasures.
I am willing to accept discussions on how to remedy thissituation.

I shall continue to teach as the kumu hula for the

Kyushu Hawaiian Association until October 31, 2014."b.

P5, who is a former head of office at Defendant and who
resigned from Defendant at the end of June this year, held a briefing
in mid-August of 2014 for KHA's members, jointly with Plaintiff's
interpreter and the like, and there, issued Document Exhibit Ko 13
to the audience, who are KHA's members, and gave explanation, andalso explained about the West Japan Hawaiian Association, which
was planned to be established (Statement by Witness P3, page 4, 12.
Plaintiff denies that explanation about the West Japan Hawaiian
Association was given at the briefing.

However, given thefollowing circumstances, namely, that Plaintiff wrote in Document
Exhibit Ko 13 as to prohibiting KHA from using the choreographies,
which are created by Plaintiff, after the relationship was dissolved,
and that Plaintiff wrote about not having the intention to abandon
KHA's members and about the willingness to discuss about how toremedy the situation, and, as described later, that a new company
which substantively operates the West Japan Hawaiian Association
was founded on September 5 of the same year, which is immediately
after the briefing, and that it is presumed that, at the time of thebriefing, it was already planned that that the West Japan Hawaiian
Association would accept members from KHA, and that, even in the"Kyushu Hawaiian Dayori" (Kyushu Hawaiian Newsletter) which
was issued by KHA in October of the same year, the aforementioned
148

briefing, in which Document Exhibit Ko 13 was distributed, wascalled by the name, "Briefing on New Company" (Exhibit ExhibitKo 3), Plaintiff's assertion cannot be accepted).
Since Defendant heard from KHA's member(s) about Document
Exhibit Ko 13 being distributed at the aforementioned briefing,
Defendant obtained Document Exhibit Ko 13 in late August(Statement by Witness P3, page 3, 4).
(E) Distribution of Document Exhibit Ko 11 by Defendant
Even after obtaining Document Exhibit Ko 13, Defendant believed
that, from the perspective of the prospect for profit, it was possible tohold Workshops provided that about the same number of participants asin the past would attend the Workshops.

As for the choreographiestaught by Plaintiff, Defendant believed that it was possible to performthem, in spite of being prohibited to do so by Plaintiff, even after theConsulting Agreement was ended because Defendant had the "masterlicense for the songs" for those choreographies.

Accordingly, Plaintiff

distributed to KHA's members a document dated 20th of the samemonth and that starts with "Dear Members of the Kyushu Hawaiian
Association" (Exhibit Ko 11; hereinafter referred to as "Document
Exhibit Ko 11"), explaining about Defendant's situation (Statement byWitness P3, page 6).
-

Document Exhibit Ko 11 contains the following.

"Most regrettably, P1, who has taught us hula over the years,
decided to end the advisory contract with the Kyushu
Hawaiian Association, with the workshops to be held in
October being the last event."-"Please be assured that you can continue using thechoreographies as before."-"As for a new hula advisor, we will not decide on one
particular person at this point in time.

Instead, we will

make our decision through our encounters with several kumu
hula by taking into consideration who gets along best with
KHA's members and the association."-"Although the Kyushu Hawaiian Association cannot succeed
KPDA, you will be able to perform hula dance at events
other than Ho'ike, which is organized by the Association."(F) Withdrawal of instructors and members
149

Between late August and early September of the same year, thesituation of KHA's members sending documents indicating theirintention to withdraw their membership was as follows.
a. Around August 27 of the same year

1 instructor (Exhibit Otsu

49)
b. Around September 3 of the same year(a) 1 instructor and 33 members taught at the instructor's school(Exhibit Otsu 50)(b) 1 instructor and 25 members taught at the instructor's school(Exhibit Otsu 51)(c) 1 instructor and 83 members taught at the instructor's school(Exhibit Otsu 52)(G) Establishment of West Japan Hawaiian Associationa.

On September 5, 2014, Lei Production Kabushiki Kaisha wasfounded for teaching hula dance, with P5 as the representative(Exhibit Otsu 53), as the company that substantively operates theWest Japan Hawaiian Association.

Plaintiff's interpreter, and P2

and P6, who were Defendant's employees and were also in charge ofthe KPDA office, joined the company.
b.

On September 6 of the same year, P2 prepared, without
Defendant's prior consent, a document titled "Dear Members of
KPDA", under the name of the Kyushu Hawaiian Association officeand the KPDA office, and distributed the same to Defendant's
members (Exhibit Ko 30).
-

The document contained the following.

"Most regrettably, P1, who has taught us hula over the years,
decided to end the advisory contract with the Kyushu
Hawaiian Association, with the workshops to be held in
October being the last event."-"Future Measures by Kyushu Hawaiian Association (KHA)","As of November 1, 2014, KHA will not succeed KPDA","You are able to perform the songs which you have learned
so far (including the songs from Tiare classes) at events otherthan Ho'ike, which is organized by the Association".

-"Future Measures by KPDA Office", "As of November 1,
2014, the KPDA will be succeeded by a new company whichconcludes a new agreement with P1 (KPDA will leave
150KHA)", "The KPDA office will continue to use the same
system as before, so that announcements on workshops, Tiare
classes, and license for KPDA members will be made in thesame manner as before".
-"Contact information", "Until October 31, 2014, the KPDA
Office will be at the Kyushu Hawaiian Association.

From

November 1, 2014, the KPDA Office will be at the newcompany.

The location and contact information of the new

office will be announced at the workshops to be held in
October, along with more information about future plans".
(H) State of application for Workshops
On September 10, 2014, the application for the Workshops was
closed.

Sales from the Workshops, as assumed from the state ofapplication, are as follows.
a. Expected sales in connection with hula dance (Exhibit Otsu 46)(a) Applicants

245 persons(b) Expected sales

6,236,947 yen

b. Expected sales in connection with Tahitian dance (Exhibit Otsu 60)(a) Applicants

40 persons(b) Expected sales

540,000 yen

c. Cost of sales-

The cost of sales required for organizing Workshops (the costfor hula dance and the cost for Tahitian dance combined) was
expected to be approximately the same amount as in 2012
and 2013 (5,682,700 yen) (the entire import of the oral
argument).

(I) The Cancellation
By seeing the state of application for the Workshops, Defendantbelieved that the Workshops would be money-losing, and also believedthat by holding the Workshops, there was the likelihood of there being
insults and wild accusations made against KHA and talk to the effectthat Plaintiff's choreographies cannot be used, as well as the solicitation
to the West Japan Hawaiian Association.

Accordingly, Defendantdecided to call off the Workshops, and on September 17 of the same
year, Defendant notified Plaintiff of the intention to cancel the T&M
Contract.
151

In response, Plaintiff sent an e-mail to Defendant on the same day,noting that the "notification was very late" and demanding that
Defendant "compensate me [Plaintiff] and my staff [Plaintiff's staff] by
payment of 50% of the professional fees" (Exhibit Otsu 19-2).

Inresponse, P2 sent, without Defendant's prior consent, an e-mail titled"Staff & Penalty Fee" to Plaintiff's interpreter (Exhibit Ko 23-1) on
October 1 of the same year.

The e-mail message indicated "WS

Penalty $14,375" and the Excel file attached thereto was titled "2014
Oct workshop" and indicated "Total 73h $28,750" and "Penalty 50%$14,375" (Exhibit Ko 23-2).
As described above, the Workshops aimed at KHA's members wascancelled, but the workshops aimed at CSHA's members were held asscheduled, and Plaintiff taught hula dance and Tahitian dance, which
Plaintiff choreographed, to CSHA's members.
(J) How the situation evolved thereaftera.

The Consulting Agreement was cancelled as of October 31 of
the same year.

b.

Since November 1, 2014, KPDA has partnered with the WestJapan Hawaiian Association, and Plaintiff teaches hula dance andTahitian dance, which Plaintiff created, to the members of the WestJapan Hawaiian Association, and the partnership with CSHA has
continued as before.

(2) Regarding Issue 7 (Whether the Cancellation took place at a time that was
detrimental to Plaintiff)
A mandate agreement may be cancelled by either party at any time (Article
651 of the Civil Code).

However, if one of the parties (hereinafter referred toas "Cancelling Party") cancels the mandate at a time that is detrimental to theother party (hereinafter referred to as "Other Party"), the Cancelling Party mustcompensate the damages suffered by the Other Party (operative part of thesame Article, item (2)).

The purport of the same is such that since a mandate

agreement is an agreement that is based on the relationship of personal trust
between the parties, each party is able to end the agreement without any reason
and at will, and in that sense, the parties are not guaranteed to gain profit bycontinuing the contractual relationship, but in the case where damage isincurred due to the cancellation taking place at a detrimental timing, theCancelling Party shall be held liable for compensating the Other Party for the152damage incurred as a result of the detrimental timing of cancellation.

In light

of the foregoing, the "detrimental timing" is interpreted as a timing at which
point damage is incurred by the Other Party as a result of the agreement being
cancelled at that point in time.

As such, like in the present case, in the casewhere the mandatary engages in the administration of the mandated business in
exchange for payment, cancellation by the mandatory shall be interpreted as
falling under the aforementioned "detrimental timing" if the mandatary, whose
intention was to continue the mandate, loses the opportunity to earn otherincome as a result.
In the present case, the Workshops were scheduled to be held from October
2 to 9, 2014, and from October 22 to 26, 2014, and the Cancellation took placeon September 17 of the same year.

According to the Statement by Plaintiff(page 17), it is acknowledged that the cancellation must have taken place twoto three months in advance in order for Plaintiff to arrange for some other work
during this period, so that it is reasonable to acknowledge that the Cancellation
took place at a "detrimental timing".
It seems that Plaintiff's assertion is such that if the cancellation does nottake place one year before the Workshops, it falls under a "detrimental timing",
but in light of the above Statement by Plaintiff, such assertion cannot be
accepted.

It also seems that Plaintiff's assertion is such that the hours spentfor preparing for Workshops should be considered "damage" as well, and thatthe above assertion is made on the premise of referring to a timing at which
point such work could have been avoided.

However, in light of the fact that

Plaintiff had to give the same instructions to CHSA's members, as those to begiven at the Workshops, the aforementioned preparations were necessary in
any case, so that Plaintiff's assertion cannot be accepted due to its premise.
(3) Regarding Issue 8 (Whether or not there were unavoidable grounds for theCancellation)
A.

Even if the optional cancellation of a mandate agreement takes place ata time that is detrimental to the Other Party, causing the Other Party to
suffer damage, if "there are unavoidable grounds" for the cancellation, theCancelling Party shall not be held liable for compensating the Other Party
for the damage incurred (proviso of Article 651, paragraph (2), Civil Code).
"Unavoidable grounds" as used herein must exist for exemption of theliability for compensating the other party for the damage incurred as aresult of the cancellation taking place at a detrimental timing, so that it is153interpreted that there must be sufficient circumstances based on which it
can be said that cancellation at the timing concerned was unavoidable even
if the other party were to suffer damage.
B.

As the reason for cancelling the T&M Contract, Defendant points to theprediction that if Workshops were held, they would not only become
money-losing, but there would also be the likelihood of Plaintiff making
insults and wild accusations against Defendant, which would then lead tomore members withdrawing from KHA, and asserts that they constitute"unavoidable grounds".

On the other hand, Plaintiff denies these reasonsfor cancellation and also denies that they constitute "unavoidable grounds".
Upon considering the background to the Cancellation, as per the basic
facts of (1), first of all, on June 18, 2014, Defendant received from Plaintiff
the Document Exhibit Otsu 2 indicating a request for dissolution of theteaching relationship, and around that time, Defendant decided to dissolve
the Consulting Agreement with Plaintiff as of October 31 of the same yearwith the Workshops being the last event.
this timing is a "detrimental timing".

It is still not acknowledged that

However, if, after November of thesame year, it no longer became possible to receive Plaintiff's instructions at
KHA, the circumstance in which participants at the Workshops, which
immediately precede the dissolution of the Consulting Agreement, would
be less than usual, or in which members would leave KHA, was predictable.
Despite the foregoing, Defendant still maintained the policy of holding theWorkshops.

Accordingly, if the reason for the Cancellation, as asserted

by Defendant, was merely such that the prediction at that point in time wasrealized, it cannot be said that there was any "unavoidable ground" due towhich the timing of cancellation became September 17 of the same year.
However, as per the basic facts of the above (1), the following
circumstances which took place later are not merely the circumstances inwhich the aforementioned prediction was realized, said circumstances
being that in mid-August of the same year, which reached the "detrimental
timing", people around Plaintiff distributed Document Exhibit Ko 13 to
KHA's general members other than the top instructors, indicating Plaintiff's
intention of prohibiting the use by KHA of the choreographies, which
Plaintiff created, after the Consultancy Agreement ended, and not only theforegoing but also that the establishment of the West Japan Hawaiian
Association is planned as a place for accepting KHA's members, along with154

the explanation about the new association, even before the dissolution of
the Consulting Agreement.

Meanwhile, Defendant distributed Document

Exhibit Ko 11, dated the 20th of the same month, to members andexplained Defendant's situation in an attempt to control the state of affairs,
but from late August until early September, instructors belonging to KHA
and members affiliated with these instructors left KHA one after another,and on the 6th of the same month, which is the day following establishmentof Lei Production Kabushiki Kaisha on the 5th of the same month, P2, who
was an employee of Defendant and who later transferred to the West Japan
Hawaiian Association, and who, it is presumed, already had the intention ofsuch transfer at this point in time, distributed, without prior consent of
Defendant and even before the dissolution of the Consulting Agreement,
Document Exhibit Ko 30 indicating that after November of the same year, a
new company would succeed the relationship of partnership with KPDA,
and that the location of the new office would be announced at theWorkshops, all of which led to the increased likelihood of the Workshops
being an opportunity for the West Japan Hawaiian Association, which is acompetitor of Defendant or KHA, to offer explanation and to solicit
members.

When, on September 10 of the same year, the application forjoining the Workshops was closed, it was discovered that the applicants forhula dance had significantly decreased to 250 persons, from the usual
number of 350 persons or so, and the applicants for Tahitian dance hadgreatly decreased to 40 persons, from the usual number of 200 persons or
so, and it is acknowledged that the circumstance was such that, given thesales (6,776,947 yen) and the cost of sales (5,682,700 yen) that was
expected from the number of applicants, the Workshops would hardly
become profitable if various other expenses were also taken into
consideration.

One week later, on the 17th of the same month, Defendant

notified Plaintiff of the Cancellation.
In light of the above background, it is acknowledged that the reason forwhich Defendant cancelled the T&M Contract by calling off theWorkshops is not only the fact that the Workshops would be money-losing
due to the small number of applicants (hereinafter referred to as"Circumstance 1"), but also the concern that by holding the Workshops,
even more members would withdraw from KHA (hereinafter referred to as"Circumstance 2").

Especially with regards to the Circumstance 2, given
155

that it is believed that the concern as to more members withdrawing from
KHA increased due to the actions taken by Plaintiff and the people around
Plaintiff after mid-August of 2014, which is after having already reachedthe "detrimental timing", and that it influenced the state of application forWorkshops of Circumstance 1, and since the state of application, whichreflected the combination of Circumstance 1 and Circumstance 2, wasdiscovered on September 10 of the same year, it is reasonable toacknowledge that the cancellation by Defendant of the T&M Contract on
the 17th of the same month was under "unavoidable grounds" due to which
the cancellation had to take place at a "detrimental timing" for Plaintiff.
Regarding this point, Plaintiff asserts that, according to the custom of
the world of hula dance, it is legitimate for Plaintiff to prohibit KHA's
members from performing the choreographies which Plaintiff created.
Even if this is the case, it cannot be said that it is legitimate for Plaintiff
and its surrounding people to take an action which substantively constitutes
solicitation, by explaining to KHA's members about the West Japan
Hawaiian Association, which is a competitor of KHA or Defendant andwhich would accept members in place of KHA, even before the dissolutionof the Consulting Agreement, and since it is reasonable that Defendant
would be concerned about how the foregoing influences withdrawal of
KHA's members and the number of applicants for the Workshops, theabove assertion by Plaintiff is not such that it affects the above
determination.
(4)

From what is described above, the claim for compensation pursuant to theoperative part of Article 651, paragraph (2) of the Civil Code is unreasonable
without having to consider other points.

8. Conclusion
In view of the above, Plaintiff's claims are reasonable within the extent ofdemanding against Defendant, on the basis of copyright, for an injunction against
the performance of Choreography 6, etc., and on the basis of an act of tort ofcopyright infringement, for payment of damages in the amount of 433,158 yenalong with delinquency charges arising therefrom at an annual rate of 5% perannum from November 1, 2017, which is subsequent to the act of tort, until
payment in full, so that the claims shall be approved within the extent describedabove (since it is not reasonable to issue a declaration of provisional execution for
Paragraph 1 of the main text, a declaration of provisional execution shall not be
156

issued), and the rest, being unreasonable, shall be dismissed.

Therefore, thejudgment shall be rendered in the form of the main text by applying Article 96,
paragraph (2) of the Code of Civil Procedure to the additional period for filing anappeal.
Osaka District Court, 26th Civil Division
Presiding Judge:

TAKAMATSU Hiroyuki

Judge:NOGAMI Seiichi

Judge:DAIMON Koichiro

157

(Attachment)
List of Defendant's Schools (omitted)

158

(Attachment)
List of Choreographies
1.

Name of the song: Awapuhi Sweet
Choreographer: Plaintiff
Details of choreography: As per the recording of "Awapuhi Sweet" in File 1
recorded in the DVD-R attached to the Complaint

2.

Name of the song: Ka Pua Loke Mae OleChoreographer: Plaintiff
Details of choreography: As per the recording of "Ka Pua Loke Mae Ole" in File2 recorded in the DVD-R attached to the Complaint

3.

Name of the song: E Kaimana' alohi
Choreographer: Plaintiff
Details of choreography: As per the recording of "E Kaimana' alohi" in File 3
recorded in the DVD-R attached to the Complaint

4.

Name of the song: Nani O Kauai
Choreographer: Plaintiff
Details of choreography: As per the recording of "Nani O Kauai" in File 4
recorded in the DVD-R attached to the Complaint

6.

Name of the song: E Pili Mai
Choreographer: Plaintiff
Details of choreography: As per Attachment 6

11.

Name of the song: Lei Ho' oheno
Choreographer: Plaintiff
Details of choreography: As per Attachment 11

13.

Name of the song: Ua Lanipili I Ka Nani O Papakōlea
Choreographer: Plaintiff
Details of choreography: As per Attachment 13

159

15.

Name of the song: Blossom Nani Ho'i eChoreographer: Plaintiff
Details of choreography: As per Attachment 15

16.

Name of the song: Māpu Mau Ke' Ala
Choreographer: Plaintiff
Details of choreography: As per Attachment 16

17.

Name of the song: Maunaleo
Choreographer: Plaintiff
Details of choreography: As per Attachment 17160