Some Mardi Gras Indians in New Orleans are searching for a new way to protect their image from exploitation and have turned to copyright law as a possible protection. The Indians, mostly working-class African Americans, traditionally craft elaborate costumes costing thousands of dollars to wear as they parade through the streets on Mardi Gras. Although once held in a tradition of violence, the ceremonies now are held in a competitive spirit. The tribes meet to compare their song, dance, and costumes with those of the other tribes.

As the tribal costumes are expensive to make, and the Indians are mostly working-class, some tribes make paid appearances at non-Mardi Gras events for a small gain. Outsiders have suggested that the Indians should further exploit their culture for monetary gain; however, the Indians themselves do not see it that way. As chief of the city’s oldest tribe explained, “Indian culture was never, ever meant to make any money.” The problem is that the Indians don’t think others should make money off of their culture either. Many of them are upset when they see calendars and prints with their photos for sale because they know that someone else is profiting from the Indian tradition, including the time and money that the Indians put into their elaborate costumes.

As a result, some Indians have filed for copyright protection for their costumes. A photograph of the costume would then potentially be protected as a derivative work. The problem is that clothing designs generally are not protected under American copyright law because they are considered functional rather than aesthetic. Accordingly, an attorney for some of the Indians argues that the costumes can be protected as sculptures. The argument, according to a UCLA law professor, is that “the Mardi Gras Indian costumes are pretty wild and not functional in the ordinary sense of the word . . . .” Of course, the counterargument is that runway fashion designs are not copyrightable, even though few people would consider those designs useful. No court has yet tested the validity of the copyrights that Indians currently hold in their costumes.

Copyright law is unclear on whether the costumes could be copyrightable as sculptures. A successful argument would classify the costumes as a work of applied art. Under the Copyright Act, a “useful article” is “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” Such articles are copyrightable “[o]nly if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

One could argue that the Indians’ costumes are analogous to masquerade costumes. The Ninth Circuit classified masquerade costumes as copyrightable works of applied art, finding that “[t]he function of costumes has little to do with their design.” The Fifth Circuit, however, did not extend protection to uniforms for casino workers, including masquerade costumes. As New Orleans is in the Fifth Circuit, an attorney for the Indians would have to find a way to distinguish their costumes from the casino worker costumes. One way of doing this would be to focus on the fact that the casino costumes are meant to serve the utilitarian purpose of a work uniform. The Indian costumes are created for their artistic elements more than they are created for the usual utilitarian purposes of clothing, such as protecting the wearer from the elements. It’s unclear how the court would respond to that argument. As New Orleans is a city that strongly protects its traditions, the court may be willing to take a broad reading of the Act to afford protection to the Indians’ costumes.

— Kate Kliebert

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