Mardis Gras Indians Claim Copyright Protection Over Outfits

from the copyright-this dept

Fri, Mar 26th 2010 5:40pm — Mike Masnick

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

19 Comments

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ChurchHatesTucker (profile), 26 Mar 2010 @ 5:45pm

I blame the *AAs
You can't get everyone to buy into the concept of a free revenue stream without *them* expecting to get in on the action too.
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NAMELESS.ONE, 26 Mar 2010 @ 6:09pm

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.
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- Anonymous Coward, 26 Mar 2010 @ 6:13pm
  
  Re: in protest ima go naked then
  Simple:
  - Ask them to come wearing their costumes to court.
  - Then accuse them of contempt because they aren't wearing clothes.
  - Hilarity.
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s0v3r1gn (profile), 26 Mar 2010 @ 7:29pm

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...
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- ChurchHatesTucker (profile), 26 Mar 2010 @ 8:23pm
  
  Re:
  "Sound like greedy people trying to get free money..."
  
  Greedy photogs always trying to make money off of other people's hard work... Bunch of leeches who need to be shut down, if you ask me.
  
  (For the humor impaired, that's Bizzarro World me. (Who still needs to be paid.))
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- Any Mouse, 26 Mar 2010 @ 11:48pm
  
  Re:
  Unless you're in France and taking a picture of something from Louis Vuitton. Then they own the photos, even if they're of counterfeits.
  
  http://techdirt.com/articles/20100322/0201248652.shtml
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BearGriz72 (profile), 26 Mar 2010 @ 9:16pm

Re: welcome to our online store, we have payment by paypal and free shipping
Spam Post Filter Fail...
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ALANTONE (profile), 26 Mar 2010 @ 10:23pm

This comment is Copyrighted !!!!
If you read this comment you owe me mucho $$$. Email me only cash in small bills. ;)
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Ben, 27 Mar 2010 @ 12:11am

Crazy Years
Welcome to Phase II of the Crazy Years.
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cryptozoologist, 27 Mar 2010 @ 7:28am

i believe the proper response is
a photoshop contest to satirize the alleged 0wnership of such images
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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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Anonymous Coward, 27 Mar 2010 @ 12:11pm

I think they're just mad that people are making a profit over something that they created. I don't think it's about the money at all, I think it's that people are selling something that they're giving for free.
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Tom black, 27 Mar 2010 @ 3:32pm

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.
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- Anonymous Coward, 28 Mar 2010 @ 2:28pm
  
  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.
  
  Don't let the door hit you in the ass on the way out.
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  - Old_Norse, 28 Mar 2010 @ 4:18pm
    
    Re: Re: Why are you writing about this on TechDirt?
    Very amusing, and yet you don't refute his point. He's absolutely right. This site is getting almost as un-tech as Wired.com.
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- Mike Masnick (profile), 28 Mar 2010 @ 10:49pm
  
  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.
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Lawrence D'Oliveiro, 28 Mar 2010 @ 6:18pm

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?
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Jerry Leichter, 30 Mar 2010 @ 9:38pm

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
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Lindsey, 18 Feb 2011 @ 9:08am

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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