Mardi Gras Indians Seek To Copyright Costumes

With one month until Mardi Gras, Mardi Gras Indians in New Orleans are in the final stages of sewing their outrageously elaborate costumes. And this year, some hope they'll be able to share in the profits from photos sold of them after the parades. They're filing for copyright protection for their costumes. For more, host Melissa Block speaks to Ashlye Keaton, an adjunct professor at Tulane Law School; and Chief Howard Miller of the Creole Wild West Mardi Gras Indians.

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MELISSA BLOCK, host:

One month to go till Mardi Gras, which means the Mardi Gras Indians in New Orleans are in the final stages of sewing their outrageously elaborate costumes. Extravaganzas of feathers, rhinestones and beads. And this year, some of the Indians hope they'll be able to share in the profits from photos sold of them after the parades. They're filing for copyright protection for those costumes. We're going to hear about the legal basis for that in a few minutes.

But, first, to one of the Indian chiefs, Howard Miller of the Creole Wild West Mardi Gras Indians, who joins me from New Orleans. Welcome to the program.

Mr. HOWARD MILLER (Chief, Creole Wild West Mardi Gras Indians): Thank you very much.

BLOCK: And Chief Miller, let's explain. These suits are custom made every year, hand sewn. Why don't you - if you can - give us a preview of yours?

Mr. MILLER: Well, you know, every year we take out to sew these suits. It takes us nine months to a whole year to complete them. They're handmade. And the suit itself is a mystery until they appear Mardi Gras Day. But I have been working diligently on this here and getting it together. I don't want to give away anything about what I may be wearing this year.

BLOCK: I didn't think you would.

(Soundbite of laughter)

Mr. MILLER: But I'll be here and I hope all will be here to see me.

BLOCK: We should explain that the Mardi Gras Indians are an old, old tradition among black New Orleanians and there would be lots of photographs after Mardi Gras of the parades in books and in posters. And this, I gather, is sort of at the root of what you feel is a level of exploitation. Can you explain that?

Mr. MILLER: Yes. For years we had the fear that we have been exploited. They had been taking advantage of us and coming in and snapping pictures. In selling the pictures, we see them everywhere - magazines, even in art galleries being sold and we are not getting anything from it. And luckily we found this nice lady, Ms. Ashlye Keaton, to take part in it and try to do something about that for us. And so far she had been successful in doing that.

BLOCK: Well, let's bring Ashlye into the conversation. This is Ashlye Keaton of Tulane Law School, the lawyer who's been working on this with you. And, Ashlye, how did these costumes, these suits that the Mardi Gras Indians are wearing come under copyright protection? How would that work?

Ms. ASHLYE KEATON (Lawyer): Well, they fall under copyright protection as works of art, as sculptures because the designs are sewn onto canvas and other materials and they are worn not as costumes, but they're worn over clothing. So they're not functional, which qualifies them for copyright protection as a sculptural work of art pursuant to the copyright act.

BLOCK: And how would this work in practice? If someone were to take a picture, say, of a Mardi Gras Indian wearing a copyrighted suit, then what?

Ms. KEATON: Well, it depends. If the photograph depicts the suit as the primary focus of the subject matter, then I would argue that would qualify as a derivative work. Let's say someone takes a photograph of Chief Howard's suit and they're selling it in commerce. Well, then he's got recourse in a court of law.

BLOCK: Chief Miller, what would you hope after this year's Mardi Gras parade, what would you hope might be different for you and the tribe?

Mr. MILLER: Well, I just would hope that if we are exploited, then we can be compensated for it because it's a lot goes into the suits - time, hour, blood, sweat, tears, money. And so, it is only fair that I think that we should be able to be compensated if someone else is going to be paid for it.

BLOCK: So, you're not talking about just your average tourist lining a Mardi Gras parade route. You're talking about maybe a calendar or a poster book or something like that.

Mr. MILLER: That's exactly what I'm talking about. We have no problem with people taking pictures for education purpose, for, you know, if you want to take a picture for your private - you know, you have in your home. There's no problem with that. It's just - if you want to take it to make money, then that's where we say we should be also compensated. And I think that's fair.

BLOCK: Chief Miller, good luck with sewing the rest of your costume. Have a great Mardi Gras. And Ashlye Keaton, thanks to you too.

Mr. MILLER: Thank you very much. And thank you all for having us.

Ms. KEATON: Thank you.

BLOCK: That's Howard Miller, chief of the Creole Wild West Mardi Gras Indians. We also spoke with Ashlye Keaton of Tulane Law School.

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