The NYT has an article today about some of the Mardi Gras Indians suing for copyright infringement when people use photographs of them for commercial purposes (not like here, where there’s no money involved). They see pics of themselves in calendars and books and they never receive any compensation for it.
Image used courtesy dsb nola under Creative Commons Attribution 2.0 Generic. Thank you!
Image used courtesy Joel Mann under Attribution-Noncommercial-No Derivative Works 2.0 Generic. Thank you!
Anyone could still take their pictures, but the Indians, many of whom live at the economic margins, would have some recourse if they saw the pictures being sold, or used in advertising. (News photographs, like the ones illustrating this article, are not at issue.)
Mardi Gras Indians have been around for more than a century — more than two, some say — and are generally thought to have originated as a way to pay homage to the American Indians who harbored runaway slaves and started families with them.
The Indians come out and parade in full dress on Mardi Gras; on St. Joseph’s Night, March 19; and on a Sunday close to St. Joseph’s — a tradition that arose out of the affinity between blacks and Sicilians in the city’s working-class precincts.
Any photograph that focused on a suit protected by a copyright could arguably be considered a derivative work. The sale of such a picture (or its use in tourism ads, for example) would be on the merits of the suit rather than the photograph itself, and if the person selling it did not have permission, he could be sued.
But the idea is not so easy to put into practice. In American copyright law, clothing designs generally cannot be protected because they are more functional than aesthetic. Ms. Keaton argues that the suits, which can weigh well over 100 pounds, should be considered works of sculpture, not outfits.
Indians do make a few hundred dollars here and there showing up at parties and concerts, and a few have tried, with disappointing results, to sell last year’s suits on eBay.
“Indian culture was never, ever meant to make any money,” said Howard Miller, Big Chief of the Creole Wild West, the city’s oldest tribe, and president of the Mardi Gras Indian Council. But neither should the culture be exploited by others.
“We have a beef,” he said, “with anybody who takes us for granted.”