Saturday, March 27, 2010
Mardis Gras Indians Claim Copyright Protection Over Outfits
Techdirt: "A bunch of folks have sent over the recent NY Times article about the 'Mardis Gras Indians' -- a group of folks in New Orleans who create elaborate costumes that they wear to a few events each year (with Mardis Gras being a big one, obviously). With the costumes being so elaborate, they're often photographed, and the Indians are so pissed off that these photographs are then sold that they're trying to claim copyright over their costumes, in order to threaten any photographer who does anything with such a photograph."
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11 comments:
I have to disagree with the article's opinion that you can not copyright costumes. While I know that a traditional dress and costume design are different, the idea that both sets of costumes do not enjoy the same kind of intellectual property protection strikes me as incredibly unfair since they are relatively similar things. From my perspective, the idea that people make money off photographing someone else work and then passing off these photos are their own intellectual property is essentially stealing.
So there's reasonable logic that keeps fashion from being eligible for copyright - the argument is that designs are all based on a very similar set of building blocks and there isn't really a concept of independent creation. The idea of copyright is that things are independent creations (I think that this isn't really true of anything that is copyrighted) and there is definitely prior art for any fashion design. This is probably true of music and books and such too (you're using notes, and english and stuff) but nobody has proven it sufficiently in court. More over, the issue here is about the photography. Photography of things in a public space is pretty clearly established fair use - even if there was a good copyright claim on the original. People who don't want something photographed should not present them in public. If they do, they can't complain when people see it, and photographing something is a pretty natural extension of seeing something.
As someone who does a substantial amount of photography and has to deal with copyright laws it's usually accepted that copyright law prevents you from duplicating an object - if they copyright their costumes (which actually happens at the moment that they create them with no further action required) then they have the rights to make other copies of the costumes and to prevent others from doing so, but a photograph of a costume is not a costume, just as a photograph of a building, no matter how iconic or "trademarked", is not the building. There is a lot of case law about fair use when it comes to photographs of objects that makes the editorial use of a picture of nearly anything acceptable. If the costume is viewable from a public place then there's not much the wearer can do to prevent pictures of it other than to bring a poncho.
It's interesting to think that this is really something that is still misunderstood. As Tom points out, a copyrighted representation of something in a tangible medium such as a photograph is not the item being photographed. For us this is a huge dilemma because many of our intellectual properties can be photographed and then reproduced, which causes a lot of problems. I think that this may be the actual problem here as opposed to the actual photographs themselves. The profit involved never helps matters either, but I'm sure that there's more to this than selling the pictures.
It is hard to believe that something we deal with on such a consistent basis is still misunderstood by a large majority. I am the first to say that I have very little knowledge about copyright wand am boggled by some of the decisions that I hear about.
The idea that costumes are any less original than a set is a little bit ridiculous. A set that is a house is very much like a real house, but should that not be original independent creations. How far does that line go?
Is a sound that is recorded not an original creation? Is a projection design that uses images not original? Is there anything now that is not based on what has come before?
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The idea that costumes are any less original than a set is a little bit ridiculous. A set that is a house is very much like a real house, but should that not be original independent creations. How far does that line go?
Is a sound that is recorded not an original creation? Is a projection design that uses images not original? Is there anything now that is not based on what has come before?"
This is exactly the argument that a lot of folks make for a new look at copyright. The set is a design of some walls and platforms and such - who first came up with that idea? We use a molding profile that some company created for us. Etc. There really is no 'original work' just transformations and adaptations of existing elements. This isn't to say that each level of change doesn't add value - we certainly need the designers and other creative content producers, but it's absurd to say that they have a 100% stake in the value of the product - a vast majority of it is prior art.
I think copyright is still confused issue especially international work. I think the important thing is copyright is that idea which is created by one. Idea has to have one's creative think and even philasophy.
This article brings up a terrific point: copyright law is there to create an "incentive to create". This specific instance, with the costuming, is somewhat confusing, and Tom does a good job explaining how that copyright law works, but this article can be used to open up to the greater idea of copyright. The incentive to create purpose seems a little lost to me. I have never thought about copyright law like that before, but I like the idea. Not being able to use someone's exact idea should force you to create your own. What would happen if the actual implementation of copyright laws was based on this understanding?
While I understand that legally photographing these costumes is allowed, I sort of sit on the fence here. Yes, you wear it in public, you obviously want it to be seen, you really shouldn't complain that pictures are being taken. But, on the other hand, these costumes were meant to be seen and enjoyed for the cultural meaning and unification... Not for profit. And after all the time and money that these people put into creating these elaborate outfits, why is it fair for someone to walk by, snap a picture and make a bunch of money off of it?
I understand where they are coming from on copyrighting there work, but this issues has been a problem for a long time. People have wanted to copyright clothing for a long time in fashion and theater so that no one can copy their work and protect their designs. I think that is it great that this is coming up and that they may come up with some solution to this. On the other had, I feel that they are going out in public which allows pictures to be taken, once in public their ideas are free game. Because of this I think this case could be dropped right now. I am excited to see what happens in the future.
"But, on the other hand, these costumes were meant to be seen and enjoyed for the cultural meaning and unification... Not for profit. And after all the time and money that these people put into creating these elaborate outfits, why is it fair for someone to walk by, snap a picture and make a bunch of money off of it?"
It's hard to see the harm here though - if they wanted to monetize, they could certainly still do it. They could photograph the costumes in better lit conditions, with a professional photographer, and sell prints or something - almost certainly better than what a photographer could get on the street. If someone else *adds value* by creating the photo and printing it, why shouldn't they be able to extract some financial value? Now you might reasonably argue that the folks who made the objects are entitled to some portion of this profit - the photographer added value, but couldn't have done it alone - but things get really messy really quickly with this approach. Maybe a better approach would be to say that the photographer, since this work is partially his value, should have the right to reproduce and sell the image for his own profit, but not most of the monopoly protections of copyright. Others (including the folks who made the costumes) could also sell copies for their own profit, or photoshop the image and put it on a website etc. This way, the photographer can extract a reasonable amount of value but not an excessive monopoly power he has no basis for.
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