Mardi Gras Indians Threaten Photographers With Copyright Suits

I wrote earlier this month about copyright lawsuits being used to protect meaning. Interestingly enough, I was at Columbia Law School last night for an Art Law Career Panel, and a friend of mine, Kate Nelson, brought this issue to my attention via a recent NY Times article. I’m curious what “free culture-arians” think about the taking of someone else’s cultural property for monetary exploitation. 

Members of the Yellow Pocahontas tribe in New Orleans, LA, who create and wear ornate, enormous feathered performative sculptural works and come out three times a year to show them off, have been getting tired of being followed around by photographers who then use and sell these images on posters, prints, and calendars without compensating members of the Yellow Pocahontas tribe. 

Rightly so, the tribal members have been researching ways to protect their cultural heritage by looking into copyright law. They’ve begun filing for copyright protection for their suits, aided in large part by two New Orleans nonprofit legal organizations.  

The argument centers on the question of protection of the sculptural “costumes”: whether they are functional and thus not protected under US Copyright Law, or sculptural works, in which case the probability of these sculptural works receiving copyright protection increases dramatically. If it’s the latter, most non-authorized photographic images of these sculptural works would be considered derivative, therefore giving force to the tribal members’ argument of copyright infringement.  

In the NY Times article a photographer of these sculptural works is quoted as stating that he has been hearing these “complaints for years,” but that these complaints are unproductive since photographers make very little money from the images they take of these sculptural works. This photographer may want to look closer at fair use, in particular the fourth factor (“the effect of the use upon the potential market for or value of the copyrighted work”).  I would also look into the recent (and well reasoned) decision in Frank Gaylord v. United States.

This issue is ripe for a good copyright fight, and one that may indeed favor the tribal members and creators of original works of art. Read the NY Times article here. I’m curious what others think.