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Let's Dance All The Way To The Copyright Office: Can The Mardi Gras Indians Costumes Be Protected By Copyright?

By Marie-Andrée Weiss

The New York Times reported this week the plight of the Mardi Gras Indians (http://www.nytimes.com/2010/03/24/us/24orleans.html). They create beautiful costumes by hand, often at great expense, to wear during festivities three times a year in the streets of New Orleans, like beautiful butterflies. Of course, they are very popular with photographers, and these photographs are sometimes used on calendars or posters, without their creators being able to benefit financially.

That is because under U.S. law, these costumes are considered clothing, and as such, useful articles that cannot be protected by copyright. Photographs of these costumes cannot be considered derivative works.

Could these costumes be protected by copyright?

According to the recent New York Times article, Ms. Ashlye M. Keaton, an attorney representing the Indians, is trying to find a way to protect their rights. What avenues may be open for these costumes to be protected?

Are these costumes useful?

"Useful articles" are defined by 17 U.S.C. § 101 as "having an intrinsic utilitarian function that is not merely to portray the appearance of the article." As beautiful and outrageous as these costumes are, they still carry out a useful function, keeping the body of its wearer warm, and protecting him from being seen naked in public, which, even during Mardi Gras, is illegal in New Orleans. So, they are "useful" in some ways.

Can the artistic qualities of the costume be separated from their utilitarian nature?

Useful articles, however, may be protected by copyright only to the extent that "their design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of the utilitarian aspects of the article" (17 U.S.C. § 101).

The House Report for the bill which became the 1976 Copyright Act (House Report no. 94-1476) noted that a design cannot be protected by copyright under the bill unless the product contains "some element that, physically or conceptually, can be identified as separable from the utilitarian aspects of that article." So even a useful article can be protected if its creator can show that some of its aesthetic features are "separable" from its utilitarian aspects.

Courts apply a "conceptual separability test" in order to determine whether copyright protection may be granted to a useful article, by assessing whether the primary ornamental aspect of the work is conceptually separable from its subsidiary utilitarian function (Kieselstein-Cord v. Accessories by Pearl, Inc. 632 F.2d 989). Well, I just spent some time admiring pictures of Mardi Gras Indians costumes posted online, and many elements of the costumes are visually separable from the utilitarian aspect, the costume as a body cover. As a matter of fact, some of the costumes are reminiscent of halos bordering icons, and constitute a frame around the dancer's body.

What if the costume is designed to provoke an emotion?

In Masquerade Novelty v. Unique Industries, the Third Circuit held in 1990 that a mask portraying the nose of an animal is not a useful article for the purposes of §101, as its utility is not to portray an animal nose, but rather to make people laugh when they see someone wearing the mask.

So, could "emotional usefulness" be a criterion as well? The Mardi Gras Indians costumes play a crucial social role in conveying strong emotional reactions when watching the dancers celebrating Mardi Gras, an euphoric holiday created in Europe as a day of celebration before plunging into the rigors of both Lent and cold weather.

Let's argue then, that the Indians' costumes are something truly beautiful, and these costumes can be certainly considered beautiful by many people. Anyway, courts do not judge people's tastes, as "it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judge of the worth of pictorial illustrations, outside of the narrower and most obvious limits"(Bleinstein v. Donaldson lithographing Co. (188 U.S. 239)).

Could a photograph be used to protect the costumes?

Ms. Keaton is quoted in the New York Times as trying to protect these costumes by copyright so that the photographs of these costumes could be then considered derivative work. Yet would it be possible to use copyrighted photographs of these costumes in order to protect the costume themselves?

A photograph, just as a sketch, is a two-dimensional rendition of a subject, and can be protected by copyright as long as it is original. Would a three-dimensional reproduction of the picture be protected? After all, the Second Circuit found that the sculptor Jeffrey Koons had infringed a photographer's copyright when creating a three-dimensional sculpture of one of his photographs, which depicted a couple on a bench holding puppies (Rogers v. Koons, 960 F.2d 301). Taking that route may be a way to prevent a third party from reproducing a costume, but would not prevent a photographer from taking another picture of the same costume, as photographing a particular subject does not prevent others from doing the same.

In Galiano v. Harrah's Operating Co., Inc., a Fifth Circuit case (416 F.3d 411), a uniform designer had received copyright protection for sketches she had made of casino employee uniforms as part of the creative process of designing these uniforms. These sketches were classified as "two-dimensional artwork." The casino continued to order the uniforms from the manufacturer, even after its business agreement with the designer had ended. The designer sued the casino for copyright infringement, claiming that the finished garments were derivative works. She was unsuccessful, and the Fifth Circuit (to which Louisiana belongs) concluded that she did not own a valid copyright to the clothing designs.

By the way, is it a costume or a sculpture?

Ms. Keaton is also arguing that these costumes could be considered sculpture. In 1984, the Ninth Circuit reversed a district court that had granted summary judgment on the grounds that a swimsuit created by the appellant Mr. Poe was useful. So a swimsuit, or, for that matter, any other garment, may or may not be useful, and whether it was an utilitarian article of clothing or a work of art has to be resolved by the trier of fact. (Poe. V. Missing Persons, 745 F.2d 1238).

Right of publicity

The New York Times notes that the Mardi Gras Indians are tired of seeing their images being used in commercial ventures, such as calendars or posters, without receiving any money themselves for the commercial exploitation of their images. But isn't this a commercial use of not only the costumes, but also of their personal identity? As such, they are entitled to have their rights protected by the right of publicity, which is the right to control the commercial use of one's image. Louisiana has adopted the right of publicity through common law. In New York State, it has been recognized by statute, NY Civ. Rights Law §§50 51.

Of course, using that route would not prevent the copying of the costumes by another party, as the right of publicity and copyright are distinct rights.

What gives?

Fashion designs are still not protected in the United States, but maybe it is time to amend the Copyright Act to protect at least one-of-a-kind costumes.

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This page contains a single entry from the blog posted on March 28, 2010 8:53 AM.

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