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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Filed Under: copyright, mardi gras, mardi gras indians
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Not that I know the guy or anything but he strikes me as one and keep having this image float in my head of him dressed like one and now this costumes thing reminded me of that.
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What would happen...
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Been lurking around for a while, but I've got to call you out on this.
http://www.racialicious.com/2010/04/12/mardi-gras-indians-can-cultural-appropriatio n-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.
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Re: Been lurking around for a while, but I've got to call you out on this.
This is just an attempt to get a peice of someone else's pie.
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Re: Been lurking around for a while, but I've got to call you out on this.
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.
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Re: Been lurking around for a while, but I've got to call you out on this.
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Dressing up a terrible idea
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Re: Dressing up a terrible idea
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?
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Response to: Kaden on Feb 18th, 2011 @ 7:19am
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Re: Response to: Kaden on Feb 18th, 2011 @ 7:19am
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?
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Re: Re: Response to: Kaden on Feb 18th, 2011 @ 7:19am
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Re: Response to: Kaden on Feb 18th, 2011 @ 7:19am
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Re: Re: Response to: Kaden on Feb 18th, 2011 @ 7:19am
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Re: Re: Re: Response to: Kaden on Feb 18th, 2011 @ 7:19am
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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.
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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?
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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.
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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.
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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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