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You Be the Judge: Photographing a Mardi Gras Indian

Mar 4, 2011

by Sarah Feingold

Etsy.com handmade and vintage goods

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!

Scenario 1:
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.

Scenario 2:
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!

141 comments

  • artworksbycarol

    artworksbycarol said 8 years ago

    Second scenario---this is part of what's wrong ! everyone wants to sue for something ;search hard enough and you'll come up with something.

  • maggiemaevintage

    maggiemaevintage said 8 years ago

    that's a tough one..i'll leave it up to the lawyers!

  • rn101

    rn101 said 8 years ago

    I am torn as well, but the main thing that sticks out to me is that the Indian stopped and posed for the photographer, AND that he is performing in a public arena and so has to be aware that people are taking his picture. I understand that the issue is that the photographer is making money off of his picture-but one wonders how many other people make money off of pictures taken of these performers?

  • millersphere

    millersphere said 8 years ago

    I lived in New Orleans for a long time. I have known people from both sides of this story. In the end, the photographer was given permission (Mardi Gras Indian posed). That photographer should be allowed to use their photo. If the artist of the costume would like to make sure they get a fair share there are different ways to go about that, without suing other artists.

  • NoFrump

    NoFrump said 8 years ago

    Generally professional photographers try to get a standard release and waiver when they photograph a person, whether they want to exhibit the photo it in a show or sell prints of the photograph. I think it's currently the best way to safeguard yourself against litigation as a photographer, but it certainly does put limitations on what work you can feel "safe" selling or displaying. As in this example, what are the odds that you have a chance to get this incredible character in a Mardi Gras parade to stop for a moment and pose for you AND get them to read over and sign a waiver? Slim to none. It's sad that it's come to this, but everybody is trying to make a buck, and people get upset when you try to make a buck off from them..and understandably so!

  • oddnia

    oddnia said 8 years ago

    The Indian posed for the photographer. His actions seem to indicate he's willing for his image to be used. Usually, you'd have the posee sign a waiver but in a public arena it might not be practical for everyone to sign a waiver. In the interest of good will, the photographer ought to share the profits.

  • tigersanddragons

    tigersanddragons said 8 years ago

    This is why photographers have their subjects sign waivers. But for those who shoot off the cuff anonymous subjects as they roam around, may find this difficult to do.

  • cemberley

    cemberley said 8 years ago

    It is good practice to have a waiver signed, but if you are in a public place, and the image you are taking can be seen from that public place, precedent says it is legal and fair use. Consider historic buildings who try to control their image. If you're on tehir property, you need their permission, but if you photograph that facade from the street, it's fair game. (Incidentally I have encountered this at Trinity Church in Boston, and the Boston Public Library. A friend was in an elaborate costume which she designed and made, and I was taking photos of her and her art, to use as my art [with her permission of course], where the buildings just happened to be appropriate-looking backgrounds. There was no intent to identify or make money off of the image of either building. Trinity decided it was ok and the BPL decided it wasn't. This was all verbal mind you, no waivers or litigation or anything).

  • theroyal

    theroyal said 8 years ago

    i am trying to be sympathetic to both sides but honestly this list of ever growing legal encroachment on every detail people can imagine is frustrating and pedantic in my opinion. i cant wait till i cant take a picture of a squirrel in the woods on top of a mountain because its genetic makeup and that of the plants surrounding it is patented by monsanto.

  • cemberley

    cemberley said 8 years ago

    theroyal: "cant take a picture of a squirrel in the woods on top of a mountain because its genetic makeup..." OMG, I know, right?! The prospect is terrifying, and all too close to reality. Monsanto has already brought litigation against farmers where Monsanto-patented seeds have blown over onto their property. It's crazy.

  • BarnshopAntiques

    BarnshopAntiques said 8 years ago

    I ask for permission before taking pictures of people because I learned the hard way. My mother in-law freaked out about a picture I put on face book. hmmm come to think of it, court and lawyers may have been more pleasant. (just kidding, sort a)

  • jamieribisi

    jamieribisi said 8 years ago

    The photographer doesn't have a model release so he can not use that image for financial gain without the model's permission.

  • QueenofCuffs

    QueenofCuffs said 8 years ago

    Difficult. Sympathetic both sides. Within reason good to get permission but in reality if you stop and discuss every time you loose the 'moment'. In this instance I would be with the photographer.

  • FOYI

    FOYI said 8 years ago

    I don't think the photographer should be able to use it for monetary gain.

  • MegansMenagerie

    MegansMenagerie said 8 years ago

    hmmm...good question! I'm not really sure.

  • AprilMarieMai

    AprilMarieMai said 8 years ago

    you need a model release, all professional photographers know this.

  • SeaFindDesigns

    SeaFindDesigns said 8 years ago

    I don't care where or how it was.... don't make money off of my image unless I say it's okay... period!! I'm sure if asked to sign a waiver, most people would have no problem.... but don't assume it's okay....

  • mgloden

    mgloden said 8 years ago

    Bottom line, he posed for the picture (not to mention it being a public place). The photographer is not making money off the costume itself, he's making money on all the footwork he did (lugging around equipment, choosing the right aperture, processing the pic, etc...).

  • CheckerboardPrincess

    CheckerboardPrincess said 8 years ago

    @theroyal Wow. You hit the nail on the head in a sad sort of way.

  • pocketfulofwhimseys

    pocketfulofwhimseys said 8 years ago

    Why not just enjoy the publicity! What a great way to get yourself known! If he makes a costume every year maybe the photographer can do a series on his work. Wouldn't that be wonderful!

  • Earleyimages

    Earleyimages said 8 years ago

    I think if it’s a new worthy event the photographer can use the image in that capacity. You can use a persons image for sale as long as the person is not recognizable in the image. Like a back or side shot or a face shot in a shadow. Otherwise a release is needed. By the way the same goes for property like homes and buildings built after 1999 I believe I could be wrong about the year.

  • PearlGem

    PearlGem said 8 years ago

    Interesting! But, it seems overly complicated.

  • NativeSky

    NativeSky said 8 years ago

    Native Americans face this problem all the time. While we don't mind people taking pictures (yes, in a public place), we assume they are just keepsake photos. It's not uncommon to have people ask to have their picture taken with you all dressed up in regalia (so you pose), but these are usually just vacation photos destined for their scrapbooks. Where it crosses the line is when someone takes a picture and uses it to make money. I have friends who have found their images on billboards, in magazine advertisements, on calendars, and being sold as art. Yes, the photographer is displaying his/her skills/talents, but the dancer gets nothing for his/her skills/talents. A true professional photographer will secure permission before using an individual's photo and will compensate that person in some way. Think about this scenario...You cute little toddler is all dressed up for the holiday parade and a photographer takes a picture of her all dressed up and looking adorable. Later, you find out from a friend that they saw your toddler's photo in a calendar featuring photos of children. You might feel flattered at first, but then you might feel a little violated. The photographer could have at least asked if it was okay and offered a copy of the calendar. It's all very different when it happens to you.

  • LivingVintage

    LivingVintage said 8 years ago

    People have been photographing Mardi Gras Indians for years. Some cultures believe their soul is being stolen by a photograph. Where do you draw the line?

  • Earleyimages

    Earleyimages said 8 years ago

    "news" not new sorry

  • LegendaryTigerHero

    LegendaryTigerHero said 8 years ago

    Scenario 3: The Mardi Gras Indian spends countless time and effort creating a new outfit in hopes of making a huge splash at this year's Mardi Gras. Nobody takes a photo. The Mardi Gras Indian cries because nobody took a photo.

  • mnjohn

    mnjohn said 8 years ago

    Legally, a model release form is needed. The photographer can't sell his photo anymore, even though the photo didn't encroach on the Indian's creativity or business. Word spreads amongst the community that the Indian is unfriendly to other artists. Everyone loses. Outside of litigation, maybe another, more beneficial agreement could have been reached? For example, the calendar could be a great promotion for the Mardi Gras Indian. If it were me, instead of taking the photographer to court, I would have asked him to slip my business card in the calendar with every sale. More gigs would be generated from people who bought the calendar and fell in love with the bright colors. More work and more money for everyone.

  • MissHildebrandt

    MissHildebrandt said 8 years ago

    Photographers should bring some CASH!!!!!!!

  • JiggyPiggyBoutique

    JiggyPiggyBoutique said 8 years ago

    I don't really know if it is right or wrong on either side but this is how I would see it. The subject posed, implying permission. However, doesn't that photograph then help the person with the costume? It is publicity. It makes me want to attend a parade to see it first hand which helps out both parties. I would also say, isn't it the quality of the photograph and the creativity of the angle and selection of subject matter and so on that makes the calendar sell? The only way I see this as a problem is if someone took the photograph and used it to imply something else. For example making the image the cover of a flyer that explains how mardi gras costumes kill innocent puppies and kitty cats in the making (not that it does.. I'm just saying..) Which is where a waiver or something would come in handy.

  • mcldrygoods

    mcldrygoods said 8 years ago

    this is tough, but i think someone posing for a picture doesn't necessarily mean that permission is given for his/her image to be published commercially esp. if the photographer didn't state his intention and had the subject sign a model release form. coming from a photography background, i see a lot of exploitation by photographers on populations they they to "capture". in the past, a lot of money was made off of taking peeks into individual lives and moments. i think people are becoming much more savvy about being the subject of a photographer or media person. in this case, there's the argument of the clothing being more a mobile sculpture or part of a performance piece, but this would apply to general everyday situations as well.

  • Mistresswolff

    Mistresswolff said 8 years ago

    I would have to say that he was in a public place, and actually stopped to pose. The costume is usable enough to wear out on the street for the parade, so it doesn't fall under the statute of sculpture. While I understand his viewpoint that he's the one who puts so much effort into the costume, but the random photographer gets money from the calendar he point the picture in, but in this case, the photographer has a right to do so. If you were to rule in favour of the Indian, then that sets the precedent that ANY picture taken of anyone or anything is subject to the same outcome. That means that anytime some tourist takes a picture of the Eiffel Tower, they would not be allowed to use it for any other purpose than to stick in an album, because the photographer would be impingeing on the rights of the trust that oversees the Tower.

  • nestapleton

    nestapleton said 8 years ago

    1) Unless the photographer obtained a signed release from the Indian, he did not have the right to reproduce his image. The issue of whether the clothes are art or not is irrelevant, the individual's likeness is protected. 2) Posing for a photo did not mean that the Indian should assume that the photo would be used anywhere. Many people take photos for their own albums,why would he not assume he was being nice to an amateur photo buff if he was not informed of the potential that the images would be reproduced? If the photographer thought he would possibly sell the photos in any way, it was his legal responsibility not only to inform the Indian, but also to obtain a release form. 3) If I were the Indian, I would probably not be mad, I would probably try to use the idea that my image was so great it is on a calendar to my advantage, as a selling point. It would make him more memorable and possibly help him sell some suits or appearance. 4) CHECK YOUR FACTS.

  • lauraprentice

    lauraprentice said 8 years ago

    Hopefully the photographer is not taking credit for creating the costume...

  • nestapleton

    nestapleton said 8 years ago

    4) CHECK YOUR FACTS - BY LAW it is NOT permissible to sell another person's likeness without their consent. It does not fall under copyright infringement because they made their clothing. That is irrelevant. It does happen all the time, however, it is NOT the same as if someone took a picture of the Eiffel Tower. How would you like to find out someone was making money off of you without your permission? A conscientious photographer lets the subject know if he will be selling an image, & a smart one obtains consent, so these sort of issues can be avoided.

  • Parachute425

    Parachute425 said 8 years ago

    I know in Chicago many of the outdoor sculptures and statues have a copyright and can't be phographed for the purpose of resale. TV and film cameras are not allowed to shoot in front of them. You can't take a picture in certain areas and use it in a calendar. The Indian posed, giving permission for the photo and not inquiring about its end use. I side with the photographer legally.

  • nestapleton

    nestapleton said 8 years ago

    Gee, some of these comments are so off base! Please do not base your actions off of some of the comments on this post - CHECK THE FACTS. I have done photography for several publications, YOU NEED A SIGNED RELEASE FORM from the subject before you can use his likeness in any commercial way. End of story. The photographer wouldn't want someone to download the photos he has created & put it on mugs or t shirts or something without his knowledge, but he expects to use the Indian's image without permission. It is the same thing. Check it out if you wish, in this story the photographer is legally in the wrong.

  • MalviMart

    MalviMart said 8 years ago

    I think the photographer should have asked for permission to use the image in the calendar and have offered some sort of fair payment to the indian. he did not have the right to reproduce his image without some sort of signed release.

  • WoodlandCottage

    WoodlandCottage said 8 years ago

    Can't we all just get along? Sorry, I just had to throw that out there... Thank you for sharing such sticky issues. I certainly makes me think--oh, my head hurts!

  • nestapleton

    nestapleton said 8 years ago

    Side with the photographer legally, check the facts. It is not anyone's opinion that matters, the photographer broke the law by using the Indian's image without consent, posing made no difference, the Indian did not know that he would appear on a calendar. The photographer should have been smarter, this is a super amateur mistake.

  • Parachute425

    Parachute425 said 8 years ago

    nestapleton - what about taking celebrity photos and selling them to tabloids? Happens all the time. I'm not saying it should but if they could legally do anything about it I think they would. Just wondering not arguing. As a photographer I'm sure you know better than I.

  • LizzyClara

    LizzyClara said 8 years ago

    I thought the photographer needed a release from the model if they were thinking of selling photos?

  • nestapleton

    nestapleton said 8 years ago

    Ok, whatever. Have you ever heard of lawsuits over celebrity photos? It is not legal to sell another person's image, however, some people may not mind, some people may not care to pursue the matter, some celebrities may benefit from it. CHECK THE LAW I am not arguing this, it is a fact. I made my point so people interested in photography might see it could be a problem. It will be a problem if they take people's opinion for fact & think they have the right to sell an image because someone online said they do & were wrong about it. Also sort of because I don't understand why some people have voiced opposite opinions as if they are fact. It does not matter that the clothes were hand-made, it does not matter that it was a public place, it does not matter that he posed. Everyone who argues these points are merely stating an opinion, which legally is not correct. You are online. CHECK THE FACTS.

  • nestapleton

    nestapleton said 8 years ago

    Sorry - last post. LizzyClara - YOU ARE RIGHT. Thank you.

  • holstein2011

    holstein2011 said 8 years ago

    I agree with "rn101". Also, the photographer could not possibly run down everyone he photographs to get their permission. This is a parade where people are enjoying the moment; MANY people are snapping shots; we can't get everything done to the nth degree. I am a little embarrassed some artists are so competitive. Opportunities are endless.

  • genevradaley

    genevradaley said 8 years ago

    Paradox.

  • kelmartfindings

    kelmartfindings said 8 years ago

    I'm going with the first "little guy". In my opinion, when the nursing assistant posed for the photo implied consent was given. Since the nursing assistant never questioned the photographer as to what was going to be done with the photo, the photographer received implied consent to do whatever he wanted with the photo. I hope the photographer sold lots of calenders since it sounds like a great photo.

  • noadi

    noadi said 8 years ago

    There is no expectation of privacy in a public place and this has been held up numerous times by the courts. No model release or consent of the person being photographed is needed (though it is generally a good idea) if a photograph is taken in a public place. That's the law and that's the reason this case was about the costume and not the privacy of the person being photographed.

  • collectiblesatoz

    collectiblesatoz said 8 years ago

    Great....always enjoy Mardi Gras.

  • CuddledUp

    CuddledUp said 8 years ago

    I will definitely leave it up to the lawyers this time. I can kinda understand where both sides are coming from.

  • AshleyDestash

    AshleyDestash said 8 years ago

    Litigation has become ever more ridiculous. If people can make a living selling hollywood star photographs/videos, I do not know of any precedent for disallowing photography of the "common" person. This case makes it sound like lawyers could track down every villager featured in the background of National Geographic and get a settlement.

  • glendalee

    glendalee said 8 years ago

    I remember when years ago Andy Warhol was sued by Campbell Soup because of his stylized images of soup cans with a Campbell label. The end result was that Warhol had enhanced the image of the soup by extending it's consumer awareness. This seems the same to me. The photographer didn't stop the benefits the costume maker derives, he merely extended it's understanding. The photo is more than simply a gorgeous costume...the photo expresses a joyous, colorful, extravagant moment.

  • carlagirl

    carlagirl said 8 years ago

    As a photography historian for 25 years, I firmly believe that, morally, the rights belong with the subject. Photography is not a divine right. Legally, what nestapleton said (which, actually, isn't the basis for Yancy's case--he wants to protect his artwork, which he happened to be wearing): MODEL RELEASE.

  • frommylifetoyours

    frommylifetoyours said 8 years ago

    the Indian stop for him. He knew that he was going to have a picture taken. What is sad is that now a days EVERYONE want to sue! Go figure.

  • maaretsinkko

    maaretsinkko said 8 years ago

    Don't sue! They are both artists. We re-interpret from our environment and interactions. The Indian might take something away from the expereince of that mardi gras (and photographer) to inspire the next wonderful costume. As an aside, I went to a dinner party and broke a tooth on a prune not pitted. The one who prepared this dish TOLD ME to sue her - her husband was a lawyer and they would pay for dental work. Well I didn't sue because I did not want to spoil every dinner party from that point on for anyone. Imagine having to sign a waiver before you sit down with friends!

  • riotsqurrl

    riotsqurrl said 8 years ago

    The photographer should have gotten a release. It's photography 101. End of story!

  • DailyHandmadePicks

    DailyHandmadePicks said 8 years ago

    I always understood photogs carried releases around with them? Now if you have never stood in the middle of nola and taken a photo....you can see why this would be hard. I find it hard to believe any one participating in a parade in Mardi Gras would have any problem with ANYONE taking a photo....we're a very creative, happy, joyous culture down here.

  • PattiTrostle

    PattiTrostle said 8 years ago

    The photographer doesn't have a model release so he can not use that image for financial gain without the model's permission _________ I never hire a model with getting written permission. A random shot off the street should be done the same way, if only for safely sake. You never know what trouble that person may cause you when the photo/painting goes public!

  • jodieflowers

    jodieflowers said 8 years ago

    I can't wait for Mardi Gras Day!! :)

  • KrystalCirca1984

    KrystalCirca1984 said 8 years ago

    Think of it this way, if someone went on Etsy, found your shop, made prints from your shop photos and sold them as their own work (and to add insult to injury, they managed to turn a higher profit on your items than you did) - you would be pretty upset. Rarely do I see an Etsy shop that does not have a statement about "reserved rights" or copywritten material. Some are art shops, some sell knitwear, some even sell yarn. How is the Mardi Gras Scenario any different? What kind of photographer/person believes that they are entitled to use anyone's image for economic gain (or personal satisfaction) without the consultation or permission of that individual? I really do wonder because it speaks directly to the character/psychology of that photographer.

  • turquoisemama

    turquoisemama said 8 years ago

    We create based on what we are exposed to... Happy Mardi Gras!!

  • briarpatchpotter

    briarpatchpotter said 8 years ago

    My opinion is if the Indian posed for a picture and did not want it used, The Indian should have told the photographer when the photo was taken or before the photo was taken. The Indian probably never thought about publishing it in anything and saw the calendar then got pissy about it, thinking he wanted part of the pie.

  • briarpatchpotter

    briarpatchpotter said 8 years ago

    The Indain should wear a sign that states: "Do not take my photo even if I pose", there!

  • polyesterstella

    polyesterstella said 8 years ago

    Can anyone tell me how that works for objects? Eg, I would like to sell notecards with my photography, and most of the photos are things. One example is a photo with a Care Bear Miniature in a group of objects. Would that be a copyright issue. I own the statue, but can I reproduce a picture of it for profit? How about strings of beads? SOmebody (no idea who) made them, am I allowed to profit from a picture of them?

  • JoyCorcoran

    JoyCorcoran said 8 years ago

    The Indian could ask the photographer to take pictures of all his costumes/sculptures and they could make a calendar together, and make some money together,instead of spending it all on lawsuits.

  • JukeBox08

    JukeBox08 said 8 years ago

    Two words: Fair use. The photographer was morally wrong to use the photos without permission but he had the right to use it.

  • PrettyHairClippies

    PrettyHairClippies said 8 years ago

    Wouldn't the photographer have to have the model's permission to use the pictures for financial gain? If the photographer did not have the model's permission, he shouldn't have used that picture in his calendar in the first place.

  • janinewhitling

    janinewhitling said 8 years ago

    The argument about whether the photographer should be able to make money from the indians outift is irrelevant in terms of photography reproduction laws, as many have described already. The use of the indians image for profit is illegal. However, if the mans face was not on show, I believe that the photographer has every right to sell the image in the calendar. He is not reproducing the clothing, he is not copying the design, he is no way competing with the indians ability to derive monetary income from the outfit. Based on that reason I believe that the indian man and the photgrapher are both entitled to continue on their way, However, the reality is that the photographer should not be reproducing the image of the mans face, and for that reason the photographer should not be entitled to continue selling the image. JukeBox 08 and others that think he has the right to use it are actually incorrect if the mans face is in view.

  • chameyscorner

    chameyscorner said 8 years ago

    You can't use "common sense" on this. Legally, the photographer needs to have the person sign a release. Even though the man posed for the photo, that does not give permission for the photographer to make money off it, unless it's being used in several allowed ways, for instance, for editorial purposes (accompanying a news article). All professional photographers, as has been mentioned over and over, get a release signed. It's to protect the photographer, as well as the subject. No matter how we'd like it to be different or easier or simpler, that's the way it presently is.

  • LaBellaTerra

    LaBellaTerra said 8 years ago

    I agree with cameyscorner......but I must say this scenario & many like it, is an unfortunate commentary on our 'lawsuit-crazed' society.

  • Earleyimages

    Earleyimages said 8 years ago

    polyesterstella, Good question, I know Disney copy writes its logos and images, so it really depends on the company.

  • LuLusApple

    LuLusApple said 8 years ago

    I have to side with the photographer even if no release was signed. The Subject being photographed clearly knew he was being photographed and did not have a problem until a profit came into play. The photographer at minimum could give a name credit on the calendar and the Mardi gras partier can look at it as free advertising. I hate sue-age (sewage).

  • SubliminalBeauty

    SubliminalBeauty said 8 years ago

    I also side with the photographer. I know in my state anything that is in plain public view can be photographed. His calender photo isn't doing anything wrong, It's is not like he is reproducing the costume and selling as his own design he's just selling the photograph. Yeah it would ethically be better if there had been some sort of release signed. If it was an issue it should have been addressed when the photo was taken. As long as the Indian/Mardi Gras goer did not have their rights violated to get the picture and as long as it wasn't at a private event, then nothing wrong was done in my opinion.

  • Earotica

    Earotica said 8 years ago

    Off topic here: I'm curious about the word "Indian", which to me means a person from India. I'm not familiar with the context "Mardi Gras Indian". Does this mean an Mardi Gras participant dressed up as an Indigenous person (Native American, in the U.S.)? If so, the photographer isn't the only one in the wrong; there's serious cultural appropriation going on here.

  • goldminetrash

    goldminetrash said 8 years ago

    Team Indian! Not having a model release signed and PROFITING off that person's image without their prior knowledge and consent is just plain sleazy.

  • stuckonewe

    stuckonewe said 8 years ago

    The main theme seems to be: "how would you like someone profiting off of you?" The Native Americans have had this happen to them for centuries, so we who do not walk the red road are finally more understanding of taking advantage of their unique culture. That said, the answer is, we all profit off each other. Owning the land in the USA is as crazy as owning the name Lady Gaga...someday perhaps we all will be patenting our genes. Until then let me tell you why the Native American's suit had to be classified as a sculpture. If I made a likeness of Lady Gaga in clay, she could not sue me for copyright infringement. As an sculptor, I can copy any human I like. I may do a great job or a really bad one, but if YOU copy MY sculpture, then you can be sued. My "work" of Lady G was original. The Native American's clothing is original work. In Europe this is called, "being under the influence of....Titian" or Picasso or whoever you last saw in an art gallery. Art feeds art. Let it be.

  • rachelungerjewelry

    rachelungerjewelry said 8 years ago

    I heard the piece on NPR radio. I do think it is a shame that the costume designers get absolutely no compensation when photographers use their photos for a very commercially marketed product, such as a calendar or poster. I believe if the court rules for the costume designers, it will force the photographers to take the time to get the name and info of the designer so they can be appropriately compensated. How to do this during a parade? That seems tricky indeed! I am interested to hear how the courts will rule. I certainly would like to see the costume designers compensated, however, when you participate in a public event on a public street, you are in essence putting yourself on display for all types of observers, with cameras and video cameras in hand. The skill of the photographer however is what makes the photo marketable, and taking a great photo is not so easily done, especially in such a busy setting. Therefore, it could also be argued that it wasn't just the costume that made the photo marketable, it was the skill of the photographer. Glad I'm not the judge!

  • EmeraldCut

    EmeraldCut said 8 years ago

    The "Indian" does have a name. People of color have oftentimes been relegated to wall paper and as sources of artistic inspiration (think "ethnic" art). I think that Tyrone Yancy (that the "Indian's" name) has a right to fight for what he believes are also his rights in the name of art. In other words, this story would not have made such a commotion if it did not fire us up a bit, or tugged at our moral heartstrings. In this globalized digital age, we need to cover our butts when it comes to copyrights. Tyrone Yancy did not give explicit (i.e.: verbal and/or written) permission to use his photograph. Therefore, the photographer should not have used his image for profit until he tracked Mr. Yancy down first to ask.

  • withlovefrommontana

    withlovefrommontana said 8 years ago

    It's sad for both parties, but I'm with the photographer's side for several reasons. If clothing or costumes are not covered by copyright protection, then the photographer did nothing wrong. If the clothing or costume is covered and protected by copyright, the photographer's work is considered fair use. Arguments or no, it sounds like the law would be clearly on the photographer's side. If there is to be a solution to something like this, we MUST amend copyright law to protect costumes specifically (since it is more than just clothing, after all). There's still the fair use issue, but at least the creation of that costume would be acknowledged.

  • withlovefrommontana

    withlovefrommontana said 8 years ago

    I must agree too with everyone who has pointed out: the smart thing to do would have been to AT LEAST ask for verbal permission on the spot when the photo was taken. That would suck to see your face on a calendar out of the blue!

  • armcandyforyou

    armcandyforyou said 8 years ago

    hmmm............sticky issue!

  • muffintopdesigns

    muffintopdesigns said 8 years ago

    ugh. i'm torn. i agree with the fact that the mardi gras indian was in a public place and that hello!!! - you're at mardi gras and people are going to take pictures!!!!! however, i would be totally p*ssed off if someone used my image to make a profit and i didn't know about it till waaaayyyy later. it wouldn't even be only about the money, but the fact that my face is out there being used on something! i would have at least liked someone to track me down to ask. just think how 30 seconds to sign a waiver would have avoided most of this mess! (that being said, how many people and their "art" have been photographed for National Geographic with or without a waiver? hmmmmm.)

  • caseysharpe

    caseysharpe said 8 years ago

    I think the compelling point here is that the artist is turning a profit using this image. I expect that as a performer, you aren't really differentiating between people who are trying to preserve a memory for personal pleasure, and people who are looking to make a profit off art. So the sensible thing to do would be to take down contact information if you're the photographer, because only the photographer knows her intent in taking the photo. I don't think it's overly demanding to ask that a photographer get waivers or at least verbal permission before turning a profit on a piece- it's common courtesy.

  • freakylittlethings

    freakylittlethings said 8 years ago

    I guess the photographer made an assumption: that the Indian posed so it was OK. The Indian probably made the assumption that the photographer was going to put the pic in the paper or maybe just use it for an exhibition. Once you get into merchandise (Which a calendar undoubtedly is) the subject of the picture was rightly annoyed that they were being exploited. If the photographer found it wasn't practical to carry waiver forms round at the event, maybe we should go back to the old days of having calling cards! The Indian and the Photographer could have exchanged cards and the lawyers would have gone hungry! ;o)

  • sparrowsalvage

    sparrowsalvage said 8 years ago

    Damn, this is the most addle-brained thing I've heard in a long time. Does this mean I have to pay royalties to the estate of Sir Giles Gilbert Scott because I'm selling a photo of one of his iconic phone booths? Did Warhol pay Campbells when he made so much on their coup cans? If this were a case of 'hey don't put my face on your calendar' I could see where it's a privacy issue, but copyright? Come on. I think you're rather being a party-pooper to spend so much time and effort doing something for the enjoyment of others, and then forbid them to make images of it. Perhaps what's really going on here is that the Mardi Gras Indian resents that while they sweat away the hours creating their costume for little money in return, the photographer makes money 'simply' from witnessing the event.

  • yaya78006

    yaya78006 said 8 years ago

    It's a parade. Photos are always taken. Now if it was on an Indian reservation, that might be another thing.

  • GottulaStudios

    GottulaStudios said 8 years ago

    There is a difference between photography billed as Fine Art and photography for commercial use. Under current law if you are using images for Fine Art purposes you do not need a release. This included gallery shows etc... http://www.nyc24.org/2006/issue3/story02/ If you are using it to sell a product or commercially like a billboard that is a whole different matter.

  • kathyjohnson3

    kathyjohnson3 said 8 years ago

    Tough one but I would think since the model willingly posed he is consiously giving his implied consent to the photographer, therefor giving the photographer "verbal contract" consent. (that's what I would argue in court anyway) :)

  • sewtara

    sewtara said 8 years ago

    I agree it was a public setting and the person posed which gives consent. But consent to just take a photo? Consent to plaster it on billboards? Consent to make money off it? If I took that picture and then saw it turned out awesome and had potential I would go ask the person if it's ok if I used it to make money and for some contact information. As someone who makes things I know how much time and effort goes into creating something and I'd be happy to share the wealth if my photo/calendar/whatever made a bazillion dollars.

  • Jusadreamin

    Jusadreamin said 8 years ago

    WOW interesting never crossed my mind, I to like taking LOTS of photos wow

  • KellyGemstoneJewelry

    KellyGemstoneJewelry said 8 years ago

    This has been a very interesting discussion. I've enjoyed reading everyone's opinions and viewpoints - it's interesting how our experiences and we ourselves have been through as artists frame how we view others and their experiences.

  • greenboat

    greenboat said 8 years ago

    If one is going to be a professional photographer, or artist of any kind, it's always wisest to carry around a sheaf of releases. A pain in the butt, but wise. However, the fact that the subject was taking part in a public event - and even stopped to pose for the photographer - slants this argument in the photographer's favor. I had a related situation when I posted my painting of an "anonymous" dance group. Anonymous to me, that is, when I took the photo I loosely based the painting on fifteen years before. Someone on Etsy recognised their friends, and spread the link around, and everyone was quite pleased and excited. No one threatened to sue. But I thought it best to contact the individuals, ask their permission, and ask them to sign legal releases in return for prints of the paintings (which are now in the printing process). Luckily, they all graciously agreed. I am still catching up on permissions for other artworks, but am being a good deal more careful about selling other people's likenesses, whether or not the likeness is intended.

  • greenboat

    greenboat said 8 years ago

    A big THANK YOU to GottulaStudios for the link above!

  • bettinas7

    bettinas7 said 8 years ago

    When you ask someone to pose for you, knowing that you may use their image to make money it should be known to the model before hand. Offer the person posing a fee for use of their photo.....let's say a sitting fee, whatever the parties concerned agree to.

  • gretsea

    gretsea said 8 years ago

    For those arguing that it could be difficult to have a consent form signed while out at a parade, St. Joseph's Day is March 19. I doubt there was a rush to get that calendar published in April. Do you not think it would have been possible in all the time the photographer was organizing that calendar for publication that he could have contacted the tribe to get a consent form from Mr. Yancy? If you are publishing a calendar on Mardi Gras Indians, hopefully you would be aware that there are only a few tribes in the city. Hopefully you would also be aware that the parades on St. Joesph night would be required to have a city permit, and that it would only take a few phone calls to track down someone in each of the tribes to show your 12 calendar pictures to to get contact information of your subjects. And those arguing about suing for a piece of the profit pie, do you not think that this single big public legal action might make others think twice before using images of the MG Indians without permission? And that after decades of scenarios like this one, it might just be long enough for the MG Indian community to expect the courtesy of not being exploited by other artists? And those saying, hey it's free publicity! Don't you think that publicity would do the subject some good if he and his tribe were recognized in the caption of the photo? And don't you think if the photographer had that info, it would only be a short step away from getting that man's permission? While I am not well versed in the laws pertaining to the case, and while I suspect that this particular photographer may not be deserving of this elevated level of negative attention and financial burden, I do recognize the benefit of this case being so publicized. As a native of New Orleans, I appreciate that the city has these rich traditions and that they are open for all to enjoy. If we expect these traditions to continue and to benefit from them we need to respect and give just credit to the people that put forth so much effort to carry them on and out.

  • PeteandPaul

    PeteandPaul said 8 years ago

    I would just be happy that someone thought my talent was good enough to photograph, and buy a copy of the calendar to show friends and family! I don't understand what the problem is.

  • alphabettymonster

    alphabettymonster said 8 years ago

    I agree with Native Sky. Whether or not what the photographer did is unlawful is unclear, but it is definitely ethically and morally yucky. I used to be a performance artist- I worked very hard on my costumes, setting the scene etc. I would often do the work in public places. Later I found a photo of me hanging in a restaurant. The photographer didn't even credit who I was. It felt like stealing my image and my artwork. He could of at least said who I was!

  • AmberGypsySky

    AmberGypsySky said 8 years ago

    I heard about this on NPR..

  • QuinnAngel00

    QuinnAngel00 said 8 years ago

    My thoughts are this: this person goes out every year and purposely dresses up and "performs" for a crowd so they KNOW there will be pictures taken. There are no signs at Mardi Gras saying not to take pictures or not to take pictures of certain performers so this is all a free public show where anyone can take pictures. If you do not want your picture take do not stop and pose and do not go. Now say someone took a picture of you picking your nose on a park bench and then sold a calendar full of pictures where people are doing embarrassing things in public without knowing they are being photographed. I would understand that this would be violating privacy and taking and using someone's picture to gain a profit without their consent. Unfortunately if you are a public performer or participate in public activities where there are no conspicuously posted signs about the rules of photography for the event, then you should assume your picture will be taken and could possibly be used. A photographer is the one taking the picture, that is them doing the work, that might be their job. They decide on angles and lighting and digital settings or film type etc. so the picture is theirs. It would be hard for two people in a public place to take the EXACT same photo (angle, exact lighting etc.) so each is original. These performers CHOOSE to make these outfits and spend the money knowing they do not get paid for performing during Mardi Gras and therefore are performing for free anyway. I think this is just a case of greed. It is not like the photographer happened to be in this person's house and snapped photos of the outfit without their consent and then made money from them. I think THAT would constitute using photos of one artist's work without consent from the artist. If I was in public wearing some jewelry I make and someone wants to photograph it and I let them, I assume they will use this anyway they want. I think the best thing for me is to give them my business card and ask that they let me know how they use the picture or where they post it and put me in the credits of the picture, that is how it is done in fashion magazines (the list of what the models are wearing and by who can be found either at the bottom of pictures or somewhere near the back of a magazine). Anyway, just my thoughts!

  • QuinnAngel00

    QuinnAngel00 said 8 years ago

    Also, I was just thinking, why is it okay for paparazzi to take pictures of celebrities whether they are at a public event or minding their own business at the store and it is ok? Is there some unwritten law that because they are a celebrity and will be in the public eye that it is okay to take photos of them no matter where they are or what they are doing in public? Because this would be the same thing. The paparazzi make money off of the embarrassing or crazy photos they can get of celebrities in public, so what is the difference? Celebrities aren't allowed the same rights as "common" folks? Even if I were a celebrity I wouldn't appreciate a picture of me in my pajamas at the store being sold to a magazine if I am not sharing the profits. I'm not performing at the time or showing up for a public photo event (like walking down the red carpet) so I wouldn't like them using and selling my photo. This is just for the argument of taking pictures of people in public in general, now when you add the element of someone's art things can be more or less difficult depending on how you see it. I mean, you can't copy movies or music because you are stealing from the artist, but selling photos of them at the store in their private time not working/performing is ok? If someone took a picture of you from your FB account (assuming it is public) and uses it in a work of art you would probably be upset, especially if they made money and did not credit you. I think the photographer should have at least handed the performer a card and somewhere on the card it should say "Your photo may be published or used by me (something something), please contact me". This way the performer has the option to call and say, please do not use my photo for anything other than private use or publication in a magazine or whatever and the photographer knows who to credit. An event like Mardi Gras could seriously be too busy to pull out waivers and have people read over them and sign them. Then less people would be willing to pose since they don't have time to stop for 5 minutes during the entire parade, pose, look over a waiver, and sign. I think a business card letting the person know to contact the photographer is a lot easier and sure, not as law binding as waiver, but better than nothing at all.

  • WhidbeyLove

    WhidbeyLove said 8 years ago

    If he posed for a photographer, he allowed the other artist to take the picture...

  • LittleWrenPottery

    LittleWrenPottery said 8 years ago

    What a minefield! It's a difficult issue, I'm not sure about this it just makes me feel perhaps in times gone back we wouldn't be having this discussion at all. I know copywrite is an important issue but sometimes you've got to let these things go.

  • sarahkincheloe

    sarahkincheloe said 8 years ago

    Just because the person posed doesn't mean he authorized his image to be sold. He probably thought it was a tourist wanting their own keepsake. As a photographer myself, I don't feel comfortable selling images of people at all. If I wanted to do that I would ask for consent.

  • HillcrestVisuals

    HillcrestVisuals said 8 years ago

    This is why I sell almost every type of photo except portraits. Once you bring people and money into the scene it's just a matter of time before someone says "I WANT!!"

  • girliepains

    girliepains said 8 years ago

    Love the image.

  • EmmaI

    EmmaI said 8 years ago

    Any photographer knows to get a signed release. If he didn't think it would get signed, then he should know that the MG Indian wouldn't want to be used commercially. As an aside, if you know the story of the MG Indians then you'd know there is a whole culture around them, including a lot of secrets. Also,members are typically from lower income inner city so making these costumes is an expensive undertaking for them. I'm pretty sure this could have been avoided if the photographer hadn't been so selfish and offered some reimbursement first (I even bet that a donation to the New Orleans Mardi Gras Council would have worked) especially since they have an authentic Indian poster every year to raise funds.

  • EmmaI

    EmmaI said 8 years ago

    Any photographer knows to get a signed release. If he didn't think it would get signed, then he should know that the MG Indian wouldn't want to be used commercially. As an aside, if you know the story of the MG Indians then you'd know there is a whole culture around them, including a lot of secrets. Also,members are typically from lower income inner city so making these costumes is an expensive undertaking for them. I'm pretty sure this could have been avoided if the photographer hadn't been so selfish and offered some reimbursement first (I even bet that a donation to the New Orleans Mardi Gras Council would have worked) especially since they have an authentic Indian poster every year to raise funds.

  • shellhunter365

    shellhunter365 said 8 years ago

    It's a sad society. Art is art, and should be for art's sake, not to fill the pockets of lawyers willing to litigate such absurdities. I would be pleased if I were the costume maker to know that I had been interesting and gorgeous enough for someone to want to immortalize all my hard work on film. What does it matter whether the human eye or the camera eye is the one to behold you? She clearly wanted to be seen, to pose, to be admired, and in response she is sueing the guy?

  • betweenpietyandesire

    betweenpietyandesire said 8 years ago

    First, let me dispel a couple mistakes here: Mardi Gras Indians do not march in many parades. THey make their suits for Mardi Gras Day only -- they come out in tribes and meet each other, often in the traditional black Mardi Gras neighborhoods uptown and around Claiborne. They do NOT create those costumes to be part of the wider Mardi Gras tradition. They created them initially because there was only one day in the year that black people were legally allowed to mask. Second, Super Sunday is also meant to be for and about the Indians. Try -- go ahead and try -- to get information about where tribes are coming out the door and try to pin down the time and location of a meeting; even Super Sunday did not used to be institutionalized like it is now. In recent years, there have been new opportunities for the Indians to make money: stage performances, tourist performances like JazzFest, and having their own pictures taken for merchandise they can make their own money from. However, when the tribes pose for tourist pictures, the assumption is that they will be used as keepsakes, or as examples of art and culture. There has never been implied consent on the part of most of the tribes or their members for others to make money off them. They like to be consulted, and another posted who suggested trying to at least put a name, tribe and location on the pictures would be respectful, which is what the tribes are asking. If you make money off them and their work, they would like some compensation from that. This age of digital imaging makes it very likely that many more people will see their images used without their consent -- and some will be stunned to find out that others made money off their images. Free publicity is fine when you have something to sell -- the Mardi Gras Indians are not selling anything when they come out on Mardi Gras and St. Joseph's Day. They are preserving a long-standing and gravely threatened cultural tradition, which gets more expensive by the year. There are millions of images from Mardi Gras on the internet, and there are thousands of images of the Indians. Does that mean that any image you create is fair game for you to make a profit from?

  • WhisperingOak

    WhisperingOak said 8 years ago

    The indian spent countless hours working on his outfit. He posed for the photo for the photographer he saw as a curious, happy tourist. The photographer, in good faith, should have shared that he was a professional and not a casual tourist and he wanted to profit from the picture and should have asked for permission to mass produce the one picture he took.

  • bmused

    bmused said 8 years ago

    Hmmm...this really is food for thought.

  • CharlotteM85

    CharlotteM85 said 8 years ago

    I'm so glad I'm in the UK. If you're in a public place you have no right to privacy. If you take a photo of someone you can do whatever you want with it. As it should be.

  • pearliemae

    pearliemae said 8 years ago

    If you can recognize a person in a photograph you've taken, you need a model release before you can sell the photo (or license rights to the photo). As both an artist who makes a costume every year to participate in the Coney Island Mermaid Parade, a professional photographer AND an Art Director who buys/licenses photography, I'm quite familiar with the ins and outs of this issue. It goes on and on, back and forth. If a photo of me should become iconic and is obviously generating a LOT of money for someone, I might approach the photographer for a piece of that action, but otherwise, it's just not worth the hassle of court.

  • OBXPuparazzi

    OBXPuparazzi said 8 years ago

    If the "indian" posed for the photo, I would think consent is implied. Certainly Mardi Gras is an event with some sort of "rules" whether written or implied and understood by its attendees. I know that at Native American Pow-Wows, it is considered offensive to photograph the dancers in the circle, and to photograph anyone in regalia without their permission. That expectation is communicated clearly and frequently at the event so that people understand what the rules are. Certainly if the photographer was making tons of money off the calendar, he could choose to offer a sum to the photo subject, or some other arrangement suitable to both parties. As a crafter, I HATE people who come into my booth and snap photos of my creations without asking. Generally, this type of person is looking to copy what I am doing. In my experience, professionals always ask permission, and generally I give permission if asked.

  • pearliemae

    pearliemae said 8 years ago

    And an aside addressing a couple of questions above: You CANNOT sell your photos of the Eiffel Tower - they come after any photographer who is trying to sell those images without written permission; Celebrities and other public figures generally can't sue for photos taken of them (thus the huge paparazzi business) as they relinquish the right of privacy in public places. They CAN sue if you sell their photo that you'd taken over the fence on private property. Get model releases IMMEDIATELY, because there is virtually no way to track down someone after the fact. I have an award winning photo of a bubble-gun street vendor in Soho (NYC) that I cannot sell because I did not have the man sign a release. I have since come to know and befriended him, and he would sign a release if I asked.

  • bungalohill

    bungalohill said 8 years ago

    The Indian posed for the photo, and recieved exposure from the calender. It is usually quite easy to spot a professional photographer from a tourist just taking a vacation photo. There really was no need to involve lawyers in this senerio, although by involving them both artists recieved exposure. Had I been the photographer and knew the person in the photo, it would seem like the decent thing to do would have been to send him a few of the calendars, and if they were at all profitable a donation to support the Indian consumes, or the St Joseph parade, after all they did give her the subject matter to make her calander possible. Artists need to support each other in this economy. Our works are frequently considered a luxurey as opposed to a necessity in rough financial times times we need to help each other as much as possible. Rarely can a person living on a nursing assistants income afford thousands for the costume costs this person is investing in. Unlike other artists he is not compesated for entertaining us...It is important for the rest of us to remember that when enjoying this type of entertainment. Free art is always a gift and if you enjoyed it, make an effort to support it so others can enjoy it.

  • BiltmoreGlassworks

    BiltmoreGlassworks said 8 years ago

    If someone is in a public place you can photograph them. Publishing their image is where things get tricky. If you are going to make a profit off of someone else's image..you should always have them sign a release form. If it is to advertise a service like portrait photography, travel photography..etc. I do not think you need one. This is advertising your skill as photographer, not a tangible product with their image as the product.

  • JewelryByCraig

    JewelryByCraig said 8 years ago

    So by using the let's sue everybody model, if someone were to photograph a model that happened to be wearing jewelry that I had made, I should sue if the photographer made money? The fact that the Indian posed makes it ok for the photographer to make money off of the photograph. Why? Because the event was a public exhibition (and let's face it, everybody knows that there are tons of "professional" photographs taken of Mardi Gras). To be involved with something as famous as Mardi Gras and not think that maybe, just maybe, your image might show up somewhere is just ridiculous. What if the photo had been in the newspaper instead??? Sure if my jewelry had shown up in a photograph somewhere I would like credit, but how can you really draw that line? If a billboard goes up and you give credit to everyone that was involved in the creation, the message of the billboard no longer exists. Think about it...photographer, each manufacturer of each piece of equipment used, the model, the location, the cashier at the gas station, the specific indiviuals that put up the billboard, etc.,etc., etc. Where is it supposed to end?

  • poorjimsvintage

    poorjimsvintage said 8 years ago

    Both sound pretty damn awesome. It would be fun to take awesome photos and sell them to tourists also would be awesome to make a rad costum and be in a parade. I'm on the fence.

  • catpaintingtuesday

    catpaintingtuesday said 8 years ago

    The photographer needs to get the model to sign a release in writing. My models are cats and I always, always, carry an ink pad and get them to stamp the release with a paw.

  • dailyportrait

    dailyportrait said 8 years ago

    As this is a public venue and the Indian is dressed up and poses, it's fair use of the image imo. If the costume had been at a fashion show and it would've been limited access then the story would've been a completely different one.

  • foxpots

    foxpots said 8 years ago

    The photographer should have gotten a release from the person wearing the Indian costume. However, even though the article of clothing was not suitable for everyday use, it is still an article of clothing and as such is a functional object and not eligible for copyright.

  • loopyboopy

    loopyboopy said 8 years ago

    LegendaryTigerHero says: Scenario 3: The Mardi Gras Indian spends countless time and effort creating a new outfit in hopes of making a huge splash at this year's Mardi Gras. Nobody takes a photo. The Mardi Gras Indian cries because nobody took a photo. ____ this was my immediate thought.

  • fuzzysushi

    fuzzysushi said 8 years ago

    Profit aside, it would completely squick me out if I discovered someone had published an image of me without my knowledge or consent. Can you imagine opening up a calendar and finding...yourself. Staring back at...yourself. Ick.

  • WriteTheGoodWrite

    WriteTheGoodWrite said 8 years ago

    I believe that, ideally, photographers should always have a model sign a release form. But is this always an attainable? Like when the model is in a parade and only pauses momentarily to pose for a photo? Is implied consent enough? It seems to me that the man in the parade expressed his art through the costume and the photographer expressed his experience of the parade through the photo (through the choices he made with the lens, the angle, the shutter speed, filter, etc) The photographer should have made a REASONABLE EFFORT to get the release form signed on the spot or after the fact. By reasonable effort after the fact, I mean making calls to find out who got permission to parade, then getting their contact info and asking them if they know who the man is. If the man is found, then permission should be asked and an offer of listing his name under the photo should be given.

  • TheMillineryShop

    TheMillineryShop said 8 years ago

    If you agree to pose for a photograph and make no concessions for future rights to that image, then you are in the public and have no right to claim ownership.

  • AggieandStan

    AggieandStan said 8 years ago

    This is the Aggie portion of AggiendStan ;) I understand both perspectives however, I feel that if the person in question dressed up and went to perform in a public event they agreed to be photographed in terms of becoming a public figure for the duration of the event, this changes their privacy rights in most countries, although I am certainly no expert. Public figures have different privacy rights don't they? and then, what defines a public figure? Is there anyone who can answer this with any certainty? What if the person was incidental to the overall image, ie. a photograph of a march - are we required to get releases from all faces shown? I would love more information on this from a strictly legal standpoint...

  • ColourblindPhoto

    ColourblindPhoto said 8 years ago

    Someone in a public space is fair game to be photographed. If they pose in front of you while holding a camera, that's implied consent. As long as the photograph doesn't violate their privacy (like if you caught the person changing into the costume), I side with the photographer. Obviously I'm biased.

  • bayousalvage

    bayousalvage said 8 years ago

    I've lived here 21 years, more than half my life. I've slowly watched the Mardi Gras Indian culture become more well-known and given the credit it is due. I've also watched their gatherings become a cash cow for anybody and everybody, almost to the point of disrespect for their privacy and ability to actually do what the Indians do. As someone who lives and works among the Indians but then reserves playtime for watching their spectacle, I cant help but think there might be a better way for each side to get what they want. A fraction of their popularity may lay in the fact that artists and photographers have been capturing their likeness and spreading the word. They do have many opportunities beyond photographs to build their cultural currency, through grants, and appearances at museums and entertainment events. Their costumes should be purchased by museums and grant programs to save for posterity and that would generate income. Either way I feel conflicted about heading down to the overpass and checking them out today. I am going to head out for St Joseph's Day and pay my respects, but I dont think I will take my camera. Happy Mardi Gras yall!

  • CraftsByBabz

    CraftsByBabz said 8 years ago

    You shouldn't be in a Mardi Gras parade if you don't want people to take your picture.

  • KreativaIsland

    KreativaIsland said 8 years ago

    So the Mardi Gras Indian didn't know he would end up in a calender, but then maybe the photographer did not know which of the 150 pictures he took would end up in the calender ! How would the photographer find him? Maybe somebody should create a web site where photographers could leave there pictures that they have decided to use and we can all go see these pics and identify ourselves and ask for lots of money.

  • mythofus

    mythofus said 8 years ago

    When I was at the local Rennaisance Festival (spelling, I know) there was an artist who made amazing masks from leather. He had signs- everywhere!- saying please don't take pictures. Presumably this applied to the inside of his shop in general as well. If someone took a picture of his work and then sold the picture, I can see the mask maker having a right to sue, since he expressely stated "no photos". Having said that, doesn't stopping and allowing your photograph to be taken constitute like non-verbal consent? Even if you don't know you're going to be in a calendar, I would think the possibility of ending up in the newspaper etc. was pretty high- it's Mardi Gras after all, a huge event. There are a hundred diffferent ways this could have been resolved differently- I hate that it has to come down to litigation.

  • mythofus

    mythofus said 8 years ago

    @themillineryshop I wish I could have just clicked "like" for your comment. =)

  • poppylovesaparty

    poppylovesaparty said 8 years ago

    Right or wrong, there are too many lawyers and far too many frivalous lawsuits. A good judge should throw this out for wasting the court's time.

  • JudyMoorePerez

    JudyMoorePerez said 8 years ago

    If you would not do it to a friend, you should not do it at all, and then you would not have to deal with the law.

  • Secondchancecreation

    Secondchancecreation said 8 years ago

    Wow! Are people really this "lawsuit happy" these days?!? Ridiculous!

  • tiedyejedi

    tiedyejedi said 8 years ago

    Of course a waiver should have been signed, I think everyone here seems to agree that's the proper legal procedure. I guess I'm looking at it from the true standpoint of two artists . . . or how I'd see it in the situation from both sides. As the photographer, I'd be thrilled. I'd feel bad about the lack of waiver and not even knowing who this person was. I'd try to track them down, get consent, and agree to give credit to them (back of the calendar, last page, footnote on that month) if I could use their photo. If I couldn't, and this situation arose, I'd try and settle it immediately offering the same things. Percentage of sales perhaps, if it was requested. (Not more than 1/12th though - you only get one month!) As the person in the costume, I'd be really, incredibly flattered to have been selected to be used in the calendar. Really, it'd be big ego points to have something like that happen. If the photographer offered me some credit/publicity, I'd be pretty thrilled at the free advertising - it'd help me get my costumes sold when I wanted to sell them. I might even make a bigger profit off the one in the calendar. A blatant rip-off is one thing, but two artists working together is always great. That's what I'd see as ideal in this situation. One person might win a lawsuit, but let's be corny here: Everyone wins if the artists come to an agreement to share the work with the world.

  • constructibles

    constructibles said 8 years ago

    wish they could find a way to work together so they could both benefit!

  • slaymaker

    slaymaker said 8 years ago

    I wonder if people would feel as torn if the photographer were a painter, instead. If they saw the costume, snapped a picture, and turned it into a painting. Most would probably side with the painter, because they put a lot of time and effort into the piece, and portrayed their own interpretation. It's just interesting how people view a photograph as something solid, when really it's just a reflection. Just a thought...

  • PokeberryPatch

    PokeberryPatch said 8 years ago

    Maybe this could have been worked out in advance on a friendly basis? Maybe it could have been a 'win/win' instead? Just makes me sad.

  • 12bookdog

    12bookdog said 8 years ago

    Look - when you photograph someone to use a photo commercially, you do generally seek a release. If someone essentially models for you - which is what seems to be the case here - they do -or ought to -have some rights.

  • URL said 4 years ago

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