Mardi Gras Indians Still Trying To Copyright Costumes

from the that's-not-how-it-works dept

Last year, we wrote about the ridiculous situation down in New Orleans where the “Mardi Gras Indians” — a group of New Orleans residents who create elaborate costumes for Mardi Gras — were trying to copyright their outfits. Of course, as we’ve noted over and over again, clothing doesn’t get covered by copyright, but this group tried to claim that the costumes were really sculptures, and thus qualified for copyright protection. The key thing they were upset about was the fact that people were taking pictures of these costumes as they wore them during Mardi Gras. Think about that for a second. You create an elaborate costume for the sole purpose of showing it off at Mardi Gras… and then you start screaming copyright infringement because someone takes a photo? Really?

Of course, they claim they’re really only concerned with people who try to make money off the photographs by selling them, so not just your everyday tourist snapping a shot. However, as we noted, this whole thing goes against the very purpose of copyright law, which was to provide an incentive to create. But these guys have plenty of incentives to create that have nothing to do with copyright. Basically, they’re just upset that someone, somewhere might make money selling a calendar of Mardi Gras photos without paying them first. Of course, the simple response to this is that they should just create their own damn calendar and sell it themselves. Competition for the win.

However, NPR has an interview with one of the guys and the law professor who’s helping them try to secure these copyrights. In it, the law professor, Ashlye Keaton, suggests that the photographs represent a derivative work of the copyrighted costume. That seems like a pretty big stretch of what qualifies as a derivative work. At the very least, if you accept that the costumes are copyrightable (a big if), then you can make a decent argument that the photograph is absolutely transformative and fair use. A collection of such photos would almost certainly be considered fair use. It reminds me of the situation a few years back, involving a book of Grateful Dead posters, which was declared to be fair use, even though it was for a commercial purpose. The point was that those images did not “compete” with the original posters, did not alter the market for the original posters and were used within the context of description about a historical event. It seems like most of that would apply here as well.

But the bigger point is really how this sort of abuse of the purpose of copyright law has become common. In the interview, the Mardi Gras Indian they interview makes no argument at all about incentives to create. Instead, he goes with the “I think that’s fair” argument for why photographers should pay him. Well, those photographers don’t think it’s fair — and copyright law is not about what someone thinks is fair. It’s about the incentive to create, and it makes no sense in this context.

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Comments on “Mardi Gras Indians Still Trying To Copyright Costumes”

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24 Comments
Tariq Kamal (user link) says:

Been lurking around for a while, but I've got to call you out on this.

This post actually reminds me of this particular post I saw on Racialicious:

http://www.racialicious.com/2010/04/12/mardi-gras-indians-can-cultural-appropriation-occur-on-the-margins

Now, it doesn’t discuss it the way you’re doing, but I do note that most of these Mardi Gras Indians do belong to economically disenfranchised groups.

Your comment on them competing with with photographers who sell their images, and possibly profit from their work, makes the assumption, of course, that the Mardi Gras Indians are able to compete with photographers and calendar-makers, who may often belong to more socio-economically privileged groups, on a level playing field.

I don’t think that’s necessarily true. To be honest, I don’t like the route they’re taking either, because of consequences outside of their particular socio-economic contexts. But I don’t think their concerns are necessarily unfounded.

Transbot9 (user link) says:

Re: Been lurking around for a while, but I've got to call you out on this.

The barriers to creating content (such as sellable photographs) aren’t as great as they used to be. The “Oh, but they’re poor” argument doesn’t hold much water, because if they wanted to do it themselves, they would find a way.

This is just an attempt to get a peice of someone else’s pie.

Michael (profile) says:

Re: Been lurking around for a while, but I've got to call you out on this.

“Your comment on them competing with with photographers who sell their images, and possibly profit from their work”

Actually, the point was that the costumes do not compete with the photographs at all (which is important to their case). The people selling the costumes and the photographers are selling completely different things – unless you wanted to wear a bunch of pictures of these costumes, they don’t compete at all.

sagescape (profile) says:

Dressing up a terrible idea

Mike, thanks for linking to this. As I comment over on my blog Legally Sociable (http://legallysociable.com/2011/02/18/dressing-up-a-terrible-idea/), I think one of the more pernicious effects of the expansion of intellectual property legal entitlements is that people now think they should be paid any time someone else makes money.

This is the problem of unsolicited benefits. If I buy a house and put a beautiful garden in the front yard, I may well raise the property values of every house on my street. Does the law allow me to collect any money from my neighbors? No.

If I squeegee your windshield without being asked to while you are stuck in traffic, can I demand that you pay me? No.

To be sure, Mardis Gras provides real benefits to lots of people, and Mr. Miller?s costume no doubt contributes to that general benefit. As a general rule, however, the law doesn?t reward people just because they provide other people with benefits. Why? It?s generally unfair to foist such a responsibility on others (that?s why ?squeegee men? are considered such a public nuisance.) Moreover, it?s way too costly for courts to figure out who should pay who in what amounts after the fact. Far better to let people strike their own bargains ? to pay for communal landscaping through a homeowner?s association or to take their cars to a car wash.

MrWilson says:

Re: Dressing up a terrible idea

“If I buy a house and put a beautiful garden in the front yard, I may well raise the property values of every house on my street. Does the law allow me to collect any money from my neighbors? No.”

How long would it be until “attractive” people start demanding proceeds for being in public and providing the rest of us with something nice to look at?

Jermaine Bossier says:

Re: Response to: Kaden on Feb 18th, 2011 @ 7:19am

I’m a Mardi Gras Indian all that law bizz yall talking I don’t know much about. I know I spend 2000$ on my suit and I hand sew every bead. I don’t Mask so Photographer can take my picture sell it to a art gallery or paint it what ever they mite do. I mask because it Tradition. This is a thing of ours. Stay away from us if u have plans on making money by taking our picture. Don’t take my picture. These suits take a year to make. These photographers don’t give us nut10 but yet they can take my picture and make money. Well to hell with dat, Stay off da back streets of New Orleans on Mardi Gras. Go see Rex. Red Beans and Ricely urs J.C.Bossier

Marcus Carab (profile) says:

Re: Re: Response to: Kaden on Feb 18th, 2011 @ 7:19am

If you don’t want your photo taken, don’t go out and show off in public.

If you want to get attention by going out and show off in public, don’t get mad when your photo gets taken.

As you say, you do this because of Tradition. That’s a really excellent and admirable reason. So if you’re doing it for tradition, why do you care what other people do? It’s not like you were planning on selling photos… so how does it hurt you at all?

Jesse says:

In this case it looks like it was a group of native and black people who formed this group. I get that you are just reporting on a group with this name.

In general though, can the US please move past this misconception that the indigenous people of Nort America are Indians? It’s one thing if everyone decided to accept an otherwise unused term…but here it just gets confusing. “Do you mean the real Indians, or the pretend kind?” I might as well say Chinese instead of American.

In this case the best way to figure it out is to consider who is using the term. “Oh it’s being used in the US therefore they probably are perpetuating a 300 year old mistake.” If this were a Canadian group, they would undoubtedly be referring to a group of people actually originally from India.

Eric (profile) says:

…you can make a decent argument that the photograph is absolutely transformative and fair use

But see the Federal Circuit’s ruling in Gaylord v. United States that a postage stamp using a photograph of a copyrighted sculpture is not a fair use and infringes the sculptor’s copyright. It’s a terrible ruling, and completely misses the Supreme Court’s rulings on the first factor, but it has set a precedent, wasn’t appealed, and hasn’t otherwise been challenged. Maybe this will set up a circuit split?

BongoBern (profile) says:

There is a restaurant in Islamorada in the Florida Keys that has notices that all photos taken of the property belong to the restaurant or are forbidden or something – it’s been a while since I was there. I figured that was phoney-baloney then. I like the indian thing (at least the little I know of it based on the TV show “Treme” (which seems to be accurate) but I don’t really see how you can copyright a costume unless it’s of a trademarked character like Spiderman etc. Putting out their own calendar or a book explaining the whole indian/Mardi Gras connection (with pictures) would be a great idea.

Anonymous Coward says:

I think the opinion in this articles is greatly uninformed. These costumes are works of art, and as works of art the owner should have a right to control the reproduction of its likeness. This shouldn’t be too hard to fathom for anyone who has set foot in a museum (also a public place) and seen no photography signs all of the place. Museums and other entities own the copyrights to those images and rely on them as a source of revenue through the calendars, post cards and other goods you buy in a gift store. The fact that mardi gras indians are not trying to exploit their image for monetary gain (i.e. selling their own calendars, etc) is totally irrelevant.

Simply suggesting mardi gras indians not go out in public if they don’t want their picture taken is also uniformed. This tradition has been taking place since the 1800s (long before the masses had cameras) and is as much a part of their art as is creating the costumes.

dee says:

Response to: Kaden on Feb 18th, 2011 @ 7:19am

That reply was meant for Jc. Yall don’t know what yall are talking about. Mardi Gras Indians is a dying art and people who know or care anything about New Orleans need to respect what they do because its a special part of our culture. I don’t know about copyrighting but i think if they take yalls picture and use it unauthorized making hundreds or thousands of dollars, yall should be able to sue their ass. They’re supposed to have a contract for you to sign giving them permission to use your likeness.

Anonymous Coward says:

I think the opinion in this articles is greatly uninformed. These costumes are works of art, and as works of art the owner should have a right to control the reproduction of its likeness. This shouldn’t be too hard to fathom for anyone who has set foot in a museum (also a public place) and seen no photography signs all of the place. Museums and other entities own the copyrights to those images and rely on them as a source of revenue through the calendars, post cards and other goods you buy in a gift store. The fact that mardi gras indians are not trying to exploit their image for monetary gain (i.e. selling their own calendars, etc) is totally irrelevant.

Simply suggesting mardi gras indians not go out in public if they don’t want their picture taken is also uniformed. This tradition has been taking place since the 1800s (long before the masses had cameras) and is as much a part of their art as is creating the costumes.

J.C.Bossier says:

Response to: Kaden on Feb 18th, 2011 @ 7:19am

U think I walk around sayn take my picture no. Photographer come to me. I could care less bout showing off for da pubic. I’m out there for 1 reason to meet other indian gangs. I could care less bout who else see me. Traditionally photographers could not come around and take pictures period. May b dats what need to happen. Start acting like Mardi Gras Indians from da 50s. Y do I care what people do with my picture is because its me on da damn picture dats y. Come take my picture!

Lauren says:

This is an interesting debate, but I tend to feel that anything taking place on a public street is fair game, case closed. However, selling a photograph of someone for advertising purposes without a model release is illegal, so they have a point there.

Another issue is; how do you know who is planning on making money off of the photos vs. those who are just taking them because they love the costumes and want documentation etc.? It is pretty difficult to make any money off of photography these days, and much like the suits, the equipment is very expensive.

There is a really great book called Spirit World by a local New Orleans (white) photographer who got to know many of the Indian clubs and documented their culture for years. I don’t know if any portion of the proceeds went back to them, but I’d be curious to know what the general opinion is of that book and of his work. I think it brought awareness of the clubs to many people who other wise wouldn’t have known about them, but I’m not sure if that is perceived in a positive or negative light…

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