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Saturday, March 27, 2010

Costume and Photography Copyright

There is a very interesting article in the New York Times online about a group of Mardi Gras Indians in New Orleans who are calling for copyright of their costumes (which look just as elaborate as traditional Indian Mas in Trinidad) and compensation when their photographs are used in advertisements.

NEW ORLEANS — Just after dusk on Friday night, Tyrone Yancy was strutting through one of the more uncertain parts of town in a $6,000 custom-made suit.

He was concerned about being robbed, but not by the neighborhood teenagers who trotted out in the street to join him. The real potential for theft, as Mr. Yancy sees it, came from the strangers darting around him and his well-appointed colleagues in a hectic orbit: photographers.

Mr. Yancy, 44, is a nursing assistant by profession. His calling, however, is as one of the Mardi Gras Indians — a member of the Yellow Pocahontas tribe, to be exact — the largely working-class black New Orleanians who create and wear ornate, enormous feathered costumes and come out three times a year to show them off.

He is also one of a number of Indians who have become fed up with seeing their photographs on calendars, posters and expensive prints, without getting anything in return.

Knowing that there are few legal protections for a person who is photographed in public — particularly one who stops and poses every few feet — some Mardi Gras Indians have begun filing for copyright protection for their suits, which account for thousands of dollars in glass beads, rhinestones, feathers and velvet, and hundreds of hours of late-night sewing.

It is interesting to note that there is currently no copyright claim on clothing as they are "functional, not aesthetic" , however lawyers for the Indians are arguing that the costumes are "sculptures" and thus they can be covered under copyright laws. Should elaborate costumes fall under the "non functional" banner and be copyrighted? And if the Indians are successful in this bid to have costumes copyrighted what does that mean for other Carnivals, like Trinidad? In that case, who owns the costume and what would that mean if a masquerader chooses to modify the costume after they collect it? Will be forced to wear the costume "as is" with no changes because it is copyrighted?

I find the topic very interesting because many of us are photographed on the road for Carnival ( be it in Trinidad, Barbados, St Lucia, New York or Miami ) in our costumes;  we pose for the photographers but do we ever stop to think where our image may actually end up ? What happens if your photograph appears on a flyer advertising a fete or event in another country? Or do you even care?


Should you have the ability to ask for your image not to be used, compensated for use of your image or does the photograph of you now become a possession of the photographer?

Not to mention some of these invitations feature professional pictures taken from Carnival Band websites:


Should the models and photographers in that case ask for their image not to be used in advertising, brochures or calenders? Who has copy right over that particular photo? Is it the model as she was paid to advertise the costume for a particular band or the photographer who took the photo of the model wearing the costume for the particular band or does the band own the photograph as the job was done to advertise their costumes?

The tricky part, I think, is determining who actually has the rights to use a photograph of you the masquerader for profit , not withstanding the cost incurred for your costume, and if you are not happy about it what recourse do you have? Thoughts?

9 comments:

mjsbunny said...

I would think that the band owns the images on their site, so they would be the ones to request the image not being used to advertise things like fetes, for example. The model would probably have signed some sort of release allowing the band to use the picture in any way they see fit. Same for the photographer...I assume, since it's a job for someone else and THEY aren't the ones keeping the photos.

I say this because I did some modelling for my uni way back when I was a Fresher. They paid me £10 and all the danish I could eat during the shoot. My picture appeared in the university prospectus that year. Two years later, it was on the sides of buses all over the city AND in Manchester, on billboards and in the cinema. Since they owned the picture, they could do whatever they wanted with it and I didn't have to get any royalties or even be notified that they were using it in that way. But if any other company had used the pictures, I think there would have been a problem!

As for photos taken on the road, I am a serious camera whore. I eh go lie, so if a person asks for my picture I'll bust out the cheesy grin! Should I be paid if my picture is used on a flyer or something? It would be nice, but I know my picture won't get used like that so I've never given it any thought. But I think the point should be raised that women need to be careful how they're posing and what they're doing, precisely because they don't know where their picture will end up or how it will be used. I'll always remember a girl I was jumping with in 2008 was like "Yes, let them skin up and pose up. I have a job to go back to when I finish playing mas and I can't afford to be on youtube with my fanny in the air like that." And I think it's something we all need to bear in mind.

dcarnivalbaby said...

Well said Mjsbunny. I agree, especially with the last comment. Me being a correctional officer, I hada be extremely careful of how I present myself on the road. As for the bands, I think it would be financial gain for them and they should go all for it.

The Sweet 7 said...

This article reminds me of a story.

Last summer when I relocated to this D.C / Virginia area, it was about carnival time. So I saw a young lady on a flyer who is always with a male friend of mine who lives in Miami. Since she was not my friend on Facebook, but he was I decided to forward him the flyer with her picture so he could tell/show her.

He was like "WHAT?"

Would you believe? IT WAS HIS PHOTOGRAPH. HE TOOK THE PICTURE OF HER!

Crazy!

Bizzie Chic said...

mjsbunny, well said.

Photos, photos, photos!!! I hate the random shots with a passion, please acknowledge me...pleaseandthanks, LoL.

Seriously, this is a very sticky situation which is hard to control. My take:
1. If outside companies choose to use photos from websites for promoting, at least show respect by not slicing and dicing the photo to your needs. If there is a watermark or trademark, leave it!!
2. Personal photos, it is so easy to right click-copy and save pictures these days. You cannot control where your pictures end up.
3. Bands on the other hand, there should be some type of copyright infringement on their photos(photo shoots are costly)

On the flip side, they may see it as advertising for them (photographers/websites etc.)

All in all, be tasteful when posing in public events (Carnival, fetes etc.) vs. a private/personal event (birthday, get together etc.) Smile, you are on candid camera!!

Mark said...

Copyright isn't an absolute thing. A controlled photograph to which a photographer has absolute and total rights can be licensed for a number of different uses in different media, all for separate costs without losing the underlying rights. That's going to be the basis of a modern photographer's business if they plan to stay in business.

Some photographs can have different copyright's embedded in them. A copy of a painting carries both the original artist's rights and the right of the photographer in reproducing it. They aren't readily separated.

Carnival photos are an almost nightmarish entanglement of rights, starting with the right of the photographer who created the photograph. Then there is the (still uncontested in court) right of the costume designer to a unique expression of art in the context of a themed Carnival band.

Then there is the right of the individual wearing the costume, even in a public place, not to be portrayed as endorsing a commercial product or defamed through the use of the photograph.
Most editorial use, which can defensibly be described as being in the public interest, can soar above such considerations (with the exception of intentional defamation), but any commercial applications will almost certainly call for written releases from anyone and anything identifiable.

And that can include the identifiable interior of a restricted space, such as a bank's lobby.
I'm not a lawyer, but I've lived in this world for the last 32 years and it can get messy.

Some of my thoughts about the moral imperatives underlying these issues are to be found in my column, most recently here...
http://lyndersaydigital.com/bd/files/BitDepth719.html

Carnivalcocoa said...

I completely agree that the photos that belong to the mas bands' websites and other promotional media should be copyrighted. Those are creative properties and should be respected as such. As for personal pics, those are virtually impossible to police (maybe there is a little more control for blog pics).

Now if you are playing mas on the road and you are photographed you have no control over that, simply because you are not a paid model nor was there any contract signed. The only control the masquerader has is how one poses and is portrayed (as mjs bunny pointed out). The photo of you on the road in mas is basically the property of the photographer.

Lisa said...

Like mjsbunny said, if you are paid for the photo, the rights belong to whoever pays you, in most cases. However, it is always good to enquire, read fine prints and ask questions for any professional work you are doing. In the US, I have seen many cases of people being sued for using photos on invites, without the person’s permission. In Trinidad when we pay for our costumes, it belongs to us. Our carnival photos are not supposed to be used for adverts, (not even by the designer) without our permission. In this case we can demand the right to be paid, if it is used.
Carnivalcola, the level of control masqueraders have with regards to Triniscene, newspapers, television etc. is that they can refuse to be photographed. (Recall the points made by Gayell after C2K10) however your photos cannot be used for any money-making ventures, even if you permit them to photo you in your costume. Furthermore, if your photo is used anywhere in the world, without your permission you have the right to demand compensation if you did not agree, in the first place. The things Trinis choose to turn a blind eye on, and let slip, is quite different in other parts of the world, especially in first world countries.
With regards to our conduct on the streets, again like mjsbunny said, we all have jobs, family and neighbors to face on Ash Wednesday.

Empath said...

its not just photos but videos as well...A friend of mine was filmed as she portrayed a costume for nottinghill carnival....nex ting yuh know...she appeared in a NOKIA ad JUST SO....she was so mad!!

atlhottie said...

I'm glad you mentioned this...I saw a flyer here in Atlanta advertising the band launch for a band here and I saw one of Sandra's (hordatt) personal pic on it and I meant to tell her because I KNOW she didn't give permission...LOL

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