Skip to main content
SearchLoginLogin or Signup

Mardi Gras “Indian” Suits: Fit for Copyright Protection?

Published onJul 29, 2011
Mardi Gras “Indian” Suits: Fit for Copyright Protection?

“Look at my King all dressed in red.  Iko, Iko, unday.”  So goes a chant familiar to New Orleanians acquainted with the city’s tradition of Mardi Gras “Indians.”  To outsiders, Mardi Gras is often associated with debauchery and an air of lawlessness.  Mardi Gras Indians, however, are part of the holiday’s deep, surprisingly family-friendly, cultural foundation.

Recognized for their intricate costumes of feathers, beads, and other decorations, “Indians” often spend the entire year crafting their designs.  Each handmade “suit,” as they are called by locals, can cost thousands of dollars to make.  Although these Indians are considered a New Orleans treasure, they are not compensated or financially supported by the city – and they do not expect to be. On the other hand, the photographers who capture, and sell, rare sightings of these New Orleans cultural icons profit from what the Indians view as a relatively small effort.

Over time, the sale of these images by “tribal outsiders” – commercial photographers – has created a feeling of exploitation among Indians who never intended their tradition to be a money-maker.  As such, Indians have begun to file for copyright protection of their extravagant suits.  Given the recent struggles of fashion designers to copyright their unique designs, many doubted that the Indians’ costumes would be considered fit for copyright protection.  However, on April 13, 2010, Howard Miller, president of the Mardi Gras Indian Council, learned that his suit had been registered with the U.S. Copyright Office.  Since then, ten more Indians have also applied for copyright protection.

Ashlye M. Keaton, an attorney assisting the Indians with their copyright matters, crafted the argument that the suits are art that do not serve any functional purpose, in contrast with the non-copyrightable, arguably utilitarian, apparel made by fashion designers. Although the Indians have not yet brought a lawsuit to enforce their copyright, Ms. Keaton’s argument is supported by recent Second Circuit Court of Appeals opinions.  For example, in Chosun International, Inc. v. Chrisha Creations, Ltd., the Second Circuit found that design elements of Halloween costumes may be copyrightable so long as those elements are physically and conceptually “separable” from the costume as a whole.  As an example, the court discussed an ornate belt buckle that is both physically separable from the belt and also conceptually separate – the ornate design does not improve the belt’s ability to keep one’s pants up.

Other circuits have also considered the copyrightable nature of costumes.  The Fourth Circuit recognized a copyright in a Barney the dinosaur costume.  Additionally, the Third Circuit even found that costume pig noses are copyrightable.  In its opinion, the court was careful to note that the pig noses were copyrightable because they had no utilitarian purpose beyond their appearance.  The court reasoned that a full costume might be distinguishable from the pig nose alone because it serves dual purposes: clothes and covers the wearer, and allows the wearer to masquerade as something he is not.

However, in the Fifth Circuit – where New Orleans is located – the court has adopted a much narrower view of what is copyrightable.  In Galiano v. Harrah’s Operating Co., Inc., the court found that “masquerade costumes” worn by casino workers were not copyrightable.  The Galiano court found a direct link between the copyrightable nature of a costume and its marketability as art independent from its utilitarian use.  This test, the court pointed out, is distinct from the various tests used in cases like Chosun that focus on physical and conceptual severability of design elements.  The Galiano plaintiff was unsuccessful in the Fifth Circuit because she did not make a showing that the costumes were marketable outside of their utilitarian use as casino worker uniforms.

Here, the Mardi Gras Indians must make a showing that their costumes have a marketable value as art beyond their use as Mardi Gras apparel.  Unfortunately, Indians have never been particularly successful in selling their suits at years’ end.  It is unclear whether this “sales difficulty” is the type of marketability meant by the Fifth Circuit in its Galiano opinion.  On the other hand, displays of Mardi Gras Indian suits are set up gallery-style throughout the city and even in cities other than New Orleans.  This type of artistic reverence certainly distinguishes Indian suits from casino uniforms, which are unlikely to be gallery-worthy.

The Fifth Circuit has noted that courts continue to twist themselves into knots regarding issues of art, costume and copyrights.  In a case such as this, where the tradition of Mardi Gras is usually shared freely, answers about ownership are not likely to come easily.

* Rachel Waters is a fourth-year JD/MBA joint-degree student at Wake Forest University.  She also holds a Bachelor of Arts in Political Science and International Studies from Wake Forest University.  Upon graduation in May 2012, Ms. Waters intends to practice business law and hopes to enjoy Mardi Gras in New Orleans for many years to come.

Comments
0
comment
No comments here
Why not start the discussion?