Mardi Gras costumes inspire photographers - and a copyright claim

By Mary Foster
Tuesday, February 8, 2011

NEW ORLEANS - Chief Howard Miller knows that cameras will start clicking next month when his Creole Wild West Mardi Gras Indians take to the streets with their elaborately beaded and feathered costumes.

Now they and members of the other "tribes" of revelers in the Mardi Gras Indian Nation are working to get a slice of the profits when photos of the towering outfits, which they have spent the year crafting, end up in books and on posters and T-shirts.

"It's not about people taking pictures for themselves, but a lot of times people take pictures and sell them," Miller said. "For years people have been reaping the benefits from the pictures they take of the Mardi Gras Indians."

Intellectual-property law dating back to the nation's founding dictates that apparel and costumes cannot be copyrighted, but Ashlye Keaton, an adjunct professor of law at Tulane University, believes she has found a way around that - by classifying them as something else.

"Their suits and crowns, their regalia, are certainly unique works of art," Keaton said. "They are entitled to protect that artwork."

Keaton got to know many of the Indians through another of the New Orleans university's programs, the Entertainment Law Legal Assistance Project.

She was intrigued by their art, more so after she saw photos sold at the New Orleans Jazz and Heritage Festival and at local galleries, apparently without the artists' permission. Pictures of the Indians sell online for up to $500 each, and books and T-shirts are also available.

The first test for the Indians will come at Mardi Gras, now that they have copyrighted the new costumes they will wear this year. The Indians revamp or completely remake their suits every year, and the copyright takes effect at the first public showing, said Ryan Vacca, an assistant professor of law at the University of Akron.

Keaton started working this past year with the club members to help preserve intellectual rights to their costumes.

Once the costumes are copyrighted, which can be done online for $40, the Indians can either sue people who sell photos of them or try to negotiate licensing fees with photographers before or after the pictures are taken.

"They would be in a good position to negotiate a flat fee or percentage of the sale, something like that," said Vacca said.

Andrew Langsam, a New York lawyer who has been practicing intellectual-property law for more than 30 years, also suggested the Indians find a way to notify photographers that their costumes were copyrighted - perhaps carrying a sign saying so - and try to find a way to negotiate use of their images beforehand.

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