When is a costume, well, just
not a costume? That would be Mardi Gras - New Orleans, some of the revelers
claim. In a decision that has long had many raising their eyebrows (pasted on
or real) costumes have long been considered not protectable under copyright law
on the theory that they fail
the test of separability - that the functional (not protecible) and the
aesthetic (protectable) cannot be separated. This is, of course, the very issue
that is at the core of the debate over fashion design protection.
As reported in the New York
Times (March 23, 2010), the traditional and traditionally elaborate to over the
top (each year more than the last) wildly creative costumes (and, while
copyright ability might be in question, creativity is not) are now the subject
of one more frontline copyright debate. Throw in another unresolved issue -
the protection of the works of indigenous peoples and there is definitely a
provocative mix of current "hot" topics swirling around this centuries old
tradition of Mardi Gras and costumes. The issue being raised by some groups is
that they should share in the profits of the photographs taken. Acknowledging
that neither they, nor anyone else,
have rights to photos taken in public places, they are hanging their
infringement claims on the uses of those photos in advertisement, calendars and
the like. Since there is no (currently) available protection for the clothing
design the argument being put forth is that they are sculptural works. Should
the costumes be protected under copyright law? What are the rights of the
photographers and others who use images of the costumes?
Wow, do I ever have mixed emotions on this issue: First, I have spent most of my professional career protecting intellectual property rights. Second, most of that time has been spent specifically protecting the rights of professional photographers. Next, much of that time has been spent examining the fine details of the Copyright Act. Finally, I spend a LOT of time in New Orleans (I haven't missed a Mardi Gras in eleven years), and I have a deep affection for the area and its people. To figure out how all of these things turn out as a bottom line opinion on the use of photographs of the Mardi Gras Indians, let's see how each of these factors plays out, almost like a Fair Use analysis.
The first factor is my orientation towards enforcing intellectual property rights. That means that, by training, experience and inclination, my gut reaction is to look at creative efforts and try to find ways to protect and enforce them. That factor weighs in favor of finding that the Mardi Gras Indians' costumes should be protected.
The second factor is my orientation towards protecting photographers' rights, intellectual property and other rights. Based on that, my reaction is that these guys have got to be kidding! There is no way they can be walking around, stopping, posing for photographs, dressed for the sole purpose of attracting the kind of attention that inevitably leads to being photographed, and then expect to be compensated. That is what my late grandmother would have called "chutzpah." If they were talking about claims based on some other theory, I might be able to support it, but copyright? Come on.
The third factor is my experience as a copyright lawyer. There has been a lot of debate in recent years about whether the Copyriht Act should be amended to afford fashion copyright protection. In fact, there was a panel on that subect at the annual meeting of the Copyright Society of the U.S.A a couple of years ago. There are good arguments on both sides, but the bottom line is simple: fashion is not protected under the Copyright Act as it stands today. That means that, if the examiners at the Copyright Office are paying attention when these applications come through, they will be rejected.
The final factor is my involvement with New Orleans and its culture, especially post-Katrina. Quite simply, part of me wants to do anything I can to protect the residents and to make sure they can make a reasonable living. Adding to the enjoyment of New Orleans and its many festivals and celebrations should be rewarded, not taken advantage of. That makes me feel that the costumes should be protected.
Where does all of this lead in the end? In my view, the third factor is controlling: These costumes are simply not entitled to copyright protection as the law stands today. We can debate all that we want as to whether that is a fair or right result, but I believe that it is the legally correct result. Calling a highly decorative set of clothing a piece of sculpture does not make it a piece of sculpture. Sorry, Mardi Gras Indians. Part of me wishes I could tell you otherwise, but you have to get the Copyright Act amended or come up with a different theory if you want to get paid for the use of these photos.
No matter what, though, laissez les bontemps roulez!
Victor S. Perlman
General Counsel & Managing Director
American Society of Media Photographers (ASMP)
150 North Second Street
Philadelphia, PA 19106
Ph: 215-451-ASMP X207
ASMP - The Premier Trade Association for Publication Photographers