Stretching copyright law

Campbell Robertson has an article in The New York Times about a New Orleans phenomenon:

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, is 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.
Anyone could still take their pictures, but the Indians, many of whom live at the economic margins, would have some recourse if they saw the pictures being sold, or used in advertising. (News photographs, like the ones illustrating this article, are not at issue.)
“It’s not the old way of doing things, but the old way of doing things was conducive to exploitation,” said Ashlye M. Keaton, a lawyer who represents Indians in her private practice and also works with them through two pro bono legal programs, Sweet Home New Orleans legal services, and the Entertainment Law Legal Assistance Project. The legal grounding of the strategy is debatable, the ability to enforce it even more so. But what may be most tricky of all is pushing the Indians themselves to start thinking about the legal and financial dimensions of something they have always done out of tradition.
Mardi Gras Indians have been around for more than a century, more than two, some say, and are generally thought to have originated as a way to pay homage to the American Indians who harbored runaway slaves and started families with them. The Indians come out and parade in full dress on Mardi Gras; on St. Joseph’s Night on 19 March; and on a Sunday close to St. Joseph’s, a tradition that arose out of the affinity between blacks and Sicilians in the city’s working-class precincts.
The thirty or so Indian tribes are representatives of their neighborhoods and, starting from home turf, they venture out in their shimmering suits to meet other tribes on procession in the streets. Time was, these run-ins would often end with somebody in the hospital, or worse. But over the past few decades, encouraged by the legendary Chief of Chiefs, Tootie Montana, the showdowns became primarily about the suits, and whose suit could out-prettify all the others.
Indian suits, which in the old days were occasionally burned at the end of a season, have become stunningly elaborate and stunningly expensive, costing upwards of $10,000. For many Indians, it is a matter of principle that they make a new suit from scratch each year. The copyright idea has been floating around for a while— several of Mr. Montana’s suits were registered years ago— but Ms. Keaton began pursuing it more vigorously in 2006, when she was approached by John Ellison, a 52-year-old detailer in an auto body shop and a member of the Wild Tchoupitoulas.
Any photograph that focused on a suit protected by a copyright could arguably be considered a derivative work. The sale of such a picture (or its use in tourism ads, for example) would be on the merits of the suit rather than the photograph itself, and if the person selling it did not have permission, he could be sued.
But the idea is not so easy to put into practice. In American copyright law, clothing designs generally cannot be protected because they are more functional than aesthetic. Ms. Keaton argues that the suits, which can weigh well over 100 pounds, should be considered works of sculpture, not outfits.
The Sweet Home organization held a workshop for Indians on the topic last fall, and is pressing them to fill out copyright forms for this year’s suits. But there has not yet been a test case for the legal theory and it is unclear how one would fare.
“The Mardi Gras Indian costumes are pretty wild and not functional in the ordinary sense of the word, so that suggests that they might be copyrightable,” Kal Raustiala, a professor at the law school of the University of California, Los Angeles, wrote in an email message. “That said,” he added, “lots of runway fashion is also way out there and not likely to fit anyone’s ordinary idea of usefulness, yet it doesn’t receive copyright protection.”
Mr. Ellison filled out his copyright registration form on the spot, but later lost it, a testament to the difficulties of changing a culture.
Christopher Porché West, who has been photographing Mardi Gras Indians since 1979, said he had heard these kinds of complaints for years. They are counterproductive, he said, given the relatively small amount of money he and other photographers earn from Indian portraits. “What they really need to do is self-exploit,” he said. If they want to make money from their culture, he said, “they should find a way to commodify it and bring that to the market.”
But words like “commodify” are foreign and even a little distasteful for many in this city, rather like finding tofu sausage in a gumbo. Indians do make a few hundred dollars here and there showing up at parties and concerts, and a few have tried, with disappointing results, to sell last year’s suits on eBay.
“Indian culture was never, ever meant to make any money,” said Howard Miller, Big Chief of the Creole Wild West, the city’s oldest tribe, and president of the Mardi Gras Indian Council. But neither should the culture be exploited by others. “We have a beef,” he said, “with anybody who takes us for granted.”