Sometimes legal disputes pit the the big guy against the little guy. Truth be told, I can’t help but root for the little guy (even when the big guy makes some pretty convincing arguments). But what if there are two little guys? What if one artist makes something and another artist photographs it? Is there a U.S. copyright and was it infringed upon?
In the hypothetical case of the Indian and the photographer, you be the judge!
You have dreams of making a living as a photographer. You lug your photography equipment to a St. Joseph’s Night parade in New Orleans and photograph Mardi Gras Indians wearing ornate, feathered costumes. One Indian even poses for you, as you carefully adjust your F-stop and aperture, in an effort to capture this beautiful moment. Later, your eyes light up, and you find yourself smiling as you review the digital files. You carefully edit and crop the Indian’s photo and create a handmade calendar to sell to tourists.
By profession, you’re a nursing assistant; your passion, however, is performing as one of the Mardi Gras Indians. You spend thousands of dollars and many hours sewing glass beads, rhinestones, feathers and velvet onto elaborate custom made suits, which weigh over 100 pounds. Each year you make a new suit from scratch, and each year your suits get wilder. You sometimes make a few hundred dollars by dressing up and showing up at parties or by selling your suits to others. This year, you wear your latest outfit to a St. Joseph’s Night parade where you see a photographer and pose for a photo.
The above two scenarios tell the same story, but from different viewpoints.
The New York Times published an article on Tyrone Yancy, one Mardi Gras Indian and his copyright concerns. NPR also published a piece on this very issue. An attorney representing the Indian may argue that the suits are sculptures and protected under copyright. The outfits are not functional clothing because they are worn over clothing and they weigh too much. Therefore, a photograph of the suit would be an unauthorized derivative work and constitute copyright infringement.
The photographer’s attorney may argue that in U.S. copyright law, clothing designs are not generally protected, as clothing is more functional. Because the suit is not protected by copyright, the photographer did not create a derivative work. The photographer’s attorney might also argue that if the suit is protectable via copyright, the photograph constitutes fair use. After all, the calendar does not compete with the Indian’s party ventures and selling markets.
The photographer might add that the photo was taken at a public event; the Indian posed for him. Also, how is anyone to know when selling a photograph could constitute infringement?
In the comments below, you be the judge!