Creole Copyright

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REUTERS / David Rae Morris
Alfred Doucette, Big Chief of the Flaming Arrows tribe of Mardi Gras Indians

Ornately costumed “Indians” are icons of New Orleans’ boisterous Mardi Gras celebrations. Despite their moniker, Mardi Gras Indians are largely African Americans, and for years their annual tradition has been a source of tension because many of them impoverish themselves to make their elaborate suits while photographers shoot them and sell their pictures. Indians fear that the photographers are profiting from their work, and to combat this, some of them are copyrighting their suits.

Howard Miller, Big Chief of the Creole Wild West and president of the Mardi Gras Indian Council, this spring became the first to secure such a copyright.

 “Indian culture was never, ever meant to make any money,” he told the New York Times in March, but he criticized its exploitation by others. “We have a beef with anybody who takes us for granted.”

Miller started the process of registering his copyright with lawyer Ashlye M. Keaton earlier this year, but the idea for copyright protection had been floating around since 2005. Keaton developed the argument that the suits are art and, as such, subject to protection.

“Indian suits are not worn to protect them from the environment; they’re worn ceremonially,” she says. “They’re sculptures that are sewn onto canvas.”

Since Miller’s suit was copyrighted, 10 more Mardi Gras Indians have applied to copyright their suits. “The fact that the suits are subject to registration adds value for many opportunities,” such as artist grants, Keaton says.

“The photographers are going to hate me right now,” she says. “But if the photographers and Indians can work in a mutually beneficial way, it increases the value of the derivative work.”

The copyright recognition is “a double-edged sword,” says photographer Zack Smith. “I agree that there is a need to protect original artwork, but I believe that the public sphere leaves the Indians vulnerable to photographers, since it is legal to photograph people on the streets.”

It’s hard to say exactly which photos would violate a copyright. Photos shot for personal, noncommercial uses would be fine, and it’s unlikely that there would be any problems with photos that document a moment or an activity in a public space regardless of use. On the other hand, a sold photo that does little more than translate the copyrighted work–the suit–into a new medium would likely violate the copyright, Keaton predicts.

“That’s what we’re going to see evolve,” she says. “How this is applied and covered.”

Photographer Erika Goldring says, “I believe my fine art photos are works of art just like the suit is. I understand that the Indians are concerned about someone profiting from their image. However, I think it’s based on the misconception that the images are mass-produced and sold. There may be photographers out there doing that, but I’m not one of them.”

“It has always been a source of revenue,” Chief Howard Miller counters. “Just not for the Indians.”

Excerpted from Offbeat (July 2010), which covers the vibrant music, food, and culture of New Orleans and Louisiana.

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