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March 03, 2023 Articles

Behind the Mask: Protecting a New Orleans Artform

The complicated history of protecting the unique creations and traditions of Mardi Gras culture bearers.

By April Davenport

New Orleans Mardi Gras is more than debauchery and beads. Mardi Gras is deeply rooted in tradition and history, and the Mardi Gras Indians are no exception. Each year, Mardi Gras Indians, also known as “Black Masking Indians,” parade through neighborhoods of New Orleans, to a rhythmic beat and melodic chants starting on Mardi Gras Day. This unique African American tradition draws thousands of revelers from all over the world to experience the culture and mystique of the Mardi Gras Indians, who are recognized for their detailed, ornate, and intricate suits. The Mardi Gras Indians’ traditions are influenced by Native American ceremonial apparel, with characteristics from African-Caribbean ritual and festival customs. Each Indian designs and creates his own suit and headdress, with elaborate bead patchwork that depicts meaningful and symbolic scenes. The beadwork is done entirely by hand. Mardi Gras Indians spend the entire year, representing hundreds of hours and thousands of dollars, constructing and crafting their designs, which are revealed to the public when they parade on Mardi Gras Day in their full regalia.

For years, the Indians and the suits have been photographed by thousands of admirers. Some of these pictures have even been sold for hundreds of dollars and have been featured in everything from coffee table books to calendars. Yet, these Mardi Gras Indians did not receive a penny from their sales. As a result, other people had been reaping financial benefits from their labor of love. The fact that someone else was using their image, and profiting from their work, over time led to feelings of exploitation by some Mardi Gras Indians.

Generally, functional costuming does not fall under copyright law. Like most of the fashion world, costumes are considered “useful articles” and do not qualify for any kind of copyright protection. However, suits worn by the Mardi Gras Indians are worn ceremonially. Therefore, a local attorney developed the argument that the suits are a three-dimensional piece of art and therefore subject to copyright protection. Basically, the suits can be described as similar to sculptures that are sewn onto canvas. As a result, Howard Miller, Big Chief of the Creole Wild West, became the first to secure a copyright for one of his suits.

The fact that the suits can be copyright protected is more than just payment from photographs; rather, it adds value for the creators to explore many other benefits, such as grant and licensing opportunities. Ideally, copyright protection is key in controlling how their images are used and ensuring they are compensated for their use. However, it is not that simple.

Whether the copyright designation offers any protection against those who profit from it could be up to the court to decide. The copyright does establish originality and ownership, but the public space in which Mardi Gras Indians display their suits leaves them vulnerable to photographers who can sell their pictures without permission or compensation. In addition, it is hard to say exactly which photos would violate the copyright. A court could consider a photographer’s use of lighting and framing as aspects that differentiate the photo as a unique work. Photos that document a moment or activity in the street may not violate the copyright, but a photo strictly depicting the suit in a new medium, with nothing more, could violate the copyright.

Copyright is a bedrock principle in American law, granting exclusive rights to creators for protection of their original works. The purpose of a copyright is to encourage the production of creative works that enrich our culture, by protecting the exclusive right of artists and inventors to benefit from their creations. However, the Mardi Gras Indians traditionally have not been able to benefit financially from their creations. This tradition has never been about making money, and the copyright protection is not about reaping a financial gain. Copyright protection is more of an empowering tool for Mardi Gras Indians to have the ability and option to file a lawsuit and go to court if they choose. However, more importantly, it sends a message to photographers and onlookers that culture bearers are important to this community, and it encourages the Mardi Gras Indians and photographers to work together to spread and uplift this truly unique art form. Laissez les bons temps rouler!

April Davenport is a law clerk at the Orleans Parish Civil District Court in New Orleans, Louisiana.

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