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.