Mardis Gras Indians Claim Copyright Protection Over Outfits

from the copyright-this dept

A bunch of folks have sent over the recent NY Times article about the “Mardis Gras Indians” — a group of folks in New Orleans who create elaborate costumes that they wear to a few events each year (with Mardis Gras being a big one, obviously). With the costumes being so elaborate, they’re often photographed, and the Indians are so pissed off that these photographs are then sold that they’re trying to claim copyright over their costumes, in order to threaten any photographer who does anything with such a photograph.

As the article notes, this is a pretty questionable copyright claim. As we’ve discussed at length, there is no copyright protection on clothing, but the lawyer who’s been pushing this copyright plan is claiming that these outfits aren’t really clothing, but sculptures — which can be covered by copyright.

Of course, the whole thing is pretty ridiculous. These costumes are designed to be worn in public and shown off. At some point you have to simply expect people to photograph them. The costumes were created to be noticed, and it’s pretty obnoxious to then get upset that they actually did get noticed. Furthermore, let’s look at this from the perspective of what copyright law is here for: it’s to create an incentive to create. Being able to copyright these outfits doesn’t change the incentives to create. Already there are strong cultural and community incentives for this group of folks to create these outfits (apparently, each year they create a new one). What becomes clear in reading the article is that they’re not using copyright law as an incentive, but simply as a way to prevent others from doing things with the photographs. This seems to go against the very purpose of copyright law.

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Comments on “Mardis Gras Indians Claim Copyright Protection Over Outfits”

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in protest ima go naked then

and ill just say when asked by the judge why aren’t you clothed?
I can’t afford to pay for copyrighted clothing your honor.

and why can’t we have copyright on cars after all they are made by artists in a room with help with machines aka robots.
they fashion sporty looking vehicles we can all drive around and we need to think of the children these people that make them support.

s0v3r1gn (profile) says:

As a photographer, generally the way it works out for copyrights on the subject of the photograph it has been determined that a photograph is a form of art, and can give an interpretation of the subject. The interpretation makes the photograph new material. There are a few rules about this, but in general, you own the photograph and not the subject and can sell the photograph(not the subject)…

Sound like greedy people trying to get free money…

bikey (profile) says:

Some reality: Many countries (all of EU for example) protect clothing design by a form of IP which resembles and may overlap with copyright. Legislators lobbied by designers have tried to pass this in the US – 75 times over the last 100 years by some estimates – but it has consistently been rejected. Basically it is a holdover from the 19th century when the US said “We are a developing country and deserve the right to copy stuff from other countries.” Even in those countries where clothing design is protected however, you can only infringe by copying the clothing (i.e. making clothing just like the protected clothing). What is protected, as we all know, are the photographs (by the photographer, or owner of the camera where there’s a dispute), so back down MGIs, you may bite off more than you can chew.

Mike Masnick (profile) says:

Re: Why are you writing about this on TechDirt?

How is this tech related? I’m a little tired of all the copyright talk here that has absolutely nothing to do with tech. You should rename the blog copyrightdirt.

From the very start of this blog, it has always been about whatever I find interesting: relating to innovation, policy, economics, business and trends. I’m sorry if you don’t like it, but most people seem to like it quite a bit. Whenever we skip over some random copyright story, people keep asking why. In this case, the story was submitted over a dozen times.

Most people wanted to see it. I’m sorry that you don’t.

Lawrence D'Oliveiro says:

There Is An Inconsistency, Though ...

How come the photographer gets to copyright their photos, while the subject enjoys no similar rights over their creation? If you think anybody “deserves” any rights, then who would it be—the one who spent hours slaving over their design and sewing, or the one who spends just a few seconds snapping a shutter?

Jerry Leichter (profile) says:

To be fair, it is worth understanding a bit more about the situation. These costumes are part of a tradition among fairly poor people, who spend significant time (months) and money (one article mentioned $6000) to create these outfits – new ones each year. What bothers them is not so much that “they want theirs” as that *others* are profiting from their work, and paying them nothing. They don’t, and never have, raised objections to tourists taking pictures of them – what bothers them is the commercial offerings. None of this was a big deal in the past because this was a local, community tradition on which no one made much money. But this has changed in recent years.

Given an overall system that rewards *some* participants monetarily but leaves others out, is it really so unreasonable that those who are left out demand “their fair share”?

It’s fine to argue – and in fact I’d probably agree – that the system *as a whole* needs reform, that the repeated cycles of “he got his, now I want mine” just makes things worse for us all, individually and collectively. For better or worse, however, we’ve been moving more and more of what used to be community/non-monetary/non-market segments of our society into the monetary/market segments. It then becomes very difficult to justify telling some group “Oh, you should just go on doing what you do for love, regardless of whether that other guy is making use of it to make money.”

— Jerry

Lindsey says:

Ummm, hello..?

First of all, @Jerry – – These “costumes” are actually rip-offs of TRADITIONAL Native American dance clothing, or regalia. Second, these people have NO RIGHT to complain, as they STOLE tradition from Native Americans.

Third, does NO ONE find this racist at all? I mean, people who have NO ties to the Native community acting like fools in designs they pilfered from the same community.. No? Nobody?

If anything, these fools should be punished, and severely, for being such jerks about it all. I honestly hope, one day, that I run into one of them so I can give them a good piece of my mind and set their butts straight.

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