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Mardi Gras “Indian” Suits: Fit for Copyright Protection? | Journal of Business & Intellectual Property Law | Wake Forest School of Law
Mardi Gras “Indian” Suits: Fit for
Copyright Protection?
Posted: July 29th, 2011
By Rachel Waters *
“Look at my King all dressed in red. Iko, Iko, unday.” So goes a chant1 familiar to New Orleanians
acquainted with the city’s tradition of Mardi Gras “Indians.” To outsiders, Mardi Gras is often associated
with debauchery and an air of lawlessness. Mardi Gras Indians, however, are part of the holiday’s deep,
surprisingly family-friendly, cultural foundation.
Recognized for their intricate costumes2 of feathers, beads, and other decorations, “Indians” often spend
the entire year crafting their designs. Each handmade “suit,” as they are called by locals, can cost
thousands of dollars to make3. Although these Indians are considered a New Orleans treasure, they are
not compensated or financially supported by the city – and they do not expect to be4. On the other hand,
the photographers who capture, and sell, rare sightings of these New Orleans cultural icons profit from
what the Indians view as a relatively small effort5.
Over time, the sale of these images by “tribal outsiders” – commercial photographers – has created a
feeling of exploitation6 among Indians who never intended their tradition to be a money-maker. As such,
Indians have begun to file for copyright protection7 of their extravagant suits. Given the recent struggles
of fashion designers8 to copyright their unique designs, many doubted that the Indians’ costumes would
be considered fit for copyright protection. However, on April 13, 20109, Howard Miller, president of the
Mardi Gras Indian Council, learned that his suit had been registered with the U.S. Copyright Office.
Since then, ten more Indians have also applied10 for copyright protection.
Ashlye M. Keaton, an attorney assisting the Indians with their copyright matters, crafted the argument
that the suits are art that do not serve any functional purpose, in contrast with the non-copyrightable,
arguably utilitarian11, apparel made by fashion designers. Although the Indians have not yet brought a
lawsuit to enforce their copyright, Ms. Keaton’s argument is supported by recent Second Circuit Court of
Appeals opinions. For example, in Chosun International, Inc. v. Chrisha Creations, Ltd.,12 the Second
Circuit found that design elements of Halloween costumes may be copyrightable so long as those
elements are physically and conceptually “separable” from the costume as a whole. As an example, the
court discussed an ornate belt buckle13 that is both physically separable from the belt and also
conceptually separate – the ornate design does not improve the belt’s ability to keep one’s pants up.
Other circuits have also considered the copyrightable nature of costumes. The Fourth Circuit recognized
a copyright14 in a Barney the dinosaur costume. Additionally, the Third Circuit even found that costume
pig noses are copyrightable15. In its opinion, the court was careful to note that the pig noses were
copyrightable because they had no utilitarian purpose beyond their appearance. The court reasoned16 that
a full costume might be distinguishable from the pig nose alone because it serves dual purposes: clothes
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Mardi Gras “Indian” Suits: Fit for Copyright Protection? | Journal of Business & Intellectual Property Law | Wake Forest School of Law
and covers the wearer, and allows the wearer to masquerade as something he is not.
However, in the Fifth Circuit – where New Orleans is located – the court has adopted a much narrower
view of what is copyrightable. In Galiano v. Harrah’s Operating Co., Inc.,17 the court found that
“masquerade costumes” worn by casino workers were not copyrightable. The Galiano court18 found a
direct link between the copyrightable nature of a costume and its marketability as art independent from its
utilitarian use. This test, the court pointed out, is distinct from the various tests used in cases like Chosun
that focus on physical and conceptual severability19 of design elements. The Galiano plaintiff was
unsuccessful in the Fifth Circuit because she did not make a showing20 that the costumes were marketable
outside of their utilitarian use as casino worker uniforms.
Here, the Mardi Gras Indians must make a showing that their costumes have a marketable value as art
beyond their use as Mardi Gras apparel. Unfortunately, Indians have never been particularly successful
in selling their suits at years’ end. It is unclear whether this “sales difficulty” is the type of marketability
meant by the Fifth Circuit in its Galiano opinion. On the other hand, displays of Mardi Gras Indian suits
are set up gallery-style21 throughout the city and even in cities other than New Orleans. This type of
artistic reverence certainly distinguishes Indian suits from casino uniforms, which are unlikely to be
gallery-worthy.
The Fifth Circuit has noted that courts continue to twist themselves into knots regarding issues of art,
costume and copyrights. In a case such as this, where the tradition of Mardi Gras is usually shared freely,
answers about ownership are not likely to come easily.
—
* Rachel Waters is a fourth-year JD/MBA joint-degree student at Wake Forest University. She also holds
a Bachelor of Arts in Political Science and International Studies from Wake Forest University. Upon
graduation in May 2012, Ms. Waters intends to practice business law and hopes to enjoy Mardi Gras in
New Orleans for many years to come.
Category: Copyright, General
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