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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Filed Under: copyright, costumes, indians, mardis gras

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  1. identicon
    bikey, 27 Mar 2010 @ 11:08am

    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.

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