Today is Mardi Gras, which means New Orleans has essentially been shut down for days of celebration and I'm left wondering, again, why the heck I ever left that beautiful, complicated, messy city. Even if a person has never been to New Orleans for Mardi Gras, there are always at least a few thoughts they can conjure up about the celebrations: parades (you have no idea), beads (seriously though), drinking (you think you know but you have no idea), and boobs (tourists). Relatively few people have ever heard of the Mardi Gras Indians, a rich African-American Mardi Gras tradition. But the Mardi Gras Indians have been there all along, performing their own Mardi Gras traditions in flamboyant handmade suits that take a year to make. While the Indians don't make money from their suits or celebrations, others would make money off the Indians' work by selling photographs and other merchandise of the Indians in their suits. In recent years the Indians have turned to intellectual property law so others don't capitalize off of their work without them receiving a share.
There are many different theories on how Mardi Gras Indians came to be. According to some the tradition is a marriage of African and American Indian cultures that developed from the two groups living and working as slaves together. The first slaves brought over were predominately men so they intermarried (by force or choice) with American Indian women who were slaves in the same households. Others say the tradition was born out of the American Indians helping slaves escape to the North. And to still others, the tradition started after Buffalo Bill brought his Wild West Show to New Orleans in 1884 and African Americans adopted parts of the wild west show into their own celebration that has slowly grown and developed.
Today there are almost 40 Mardi Gras Indian tribes. These tribes are primarily community-based; the tribe you belong to (if you so wish) depends on where you're from. Active primarily during the Mardi Gras season and Super Sunday (the Sunday after St. Josephs Day, March 19) tribes are led by their chief, marching, dancing, and performing their tribal songs. Unlike the larger Mardi Gras parades, the tribal parades don't have preset routes. When two tribes come upon each other they can either choose to simply pass or engage in "battle" with chants and songs in made-up languages based on African languages.
The intricate feather and bead suits Indians wear are handmade and take about a year to complete. It only makes sense that people would want to photograph these masterpieces. However many Mardi Gras Indians disagree with the people who make money with those pictures (by selling prints, calendars, and other goods). Indians do not make money off of their performances and many consider it unfair that third-parties make money off of their hard work (seriously, look at those suits!) without receiving a cut themselves. Yeah, you're buying a print that John Doe took but surely what makes the picture worth buying is the incredible suits in it.
The three main intellectual property rights are trademark, patent, and copyright. Trademark basically governs brand names and logos. We're all generally familiar with trademark; I can't slap the Nestle name on something and sell it. Patent law is for the "useful arts." We hear about patent most often with new inventions and medicines, e.g. this new drug is incredibly expensive because Pfizer owns the patent on it so they're the only one who can make this drug for the next 40 years. Copyright generally protects those creations that don't fall under patent. Written works, drawings, songs, etc., are protected by copyright from the minute they are "fixed in a tangible medium." These all get much more complicated than this, of course, but that's for another day.
Despite what many might assume, clothing isn't typically copyrightable. Yes, there's definitely an element of artistic creation in the design of clothes but clothing design is still primarily utilitarian. So while the Indians spent a lot of time and money creating their beautiful suits, it looked for a long time like they had no IP protection to turn to. This changed in 2010 when the first Mardi Gras Indian suit was successfully registered with the United States Copyright Office as sculpture/3D artwork. The suit owner/creator Howard Miller and his attorney argued that the suit was sculpture, and not clothing, because the suit was built on canvas and other materials and worn over clothes. So, unlike clothing, the suit is purely artistic/ceremonial and served no useful function. After Miller's copyright application was successful, many other Mardi Gras Indians started applying for copyright registration for their suits.
Having a registered copyright does not guarantee that the copyright is valid. It does not appear that anyone has yet to challenge these copyrights in court so we cannot be sure the courts will accept the same arguments the U.S. Copyright Office did. But, assuming these copyrights are valid, Indians can now hopefully sue photographers who sell pictures where the focus is the suits themselves, arguing that the photographs are derivative. In the practical day-to-day, Indians are not likely to make much (if any) money from this. The reality is there simply isn't a lot of money in copyright and lawsuits can be expensive. Many photographers would likely immediately stop selling their photographs as soon as they received a cease and desist letter from the Indians. And where Indians did succeed to recover a share of the profits from photos sold, it probably would never amount to much. But for all the Indians who've long felt exploited by strangers outside their tribe making money off their hard work, they now have the protection of copyright law.
ETA: The following disclaimer was not included when this column was initially posted. However that was simply an oversight. Although the disclaimer was not always present on this post the content of the disclaimer remained true to the post.
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