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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?
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