According to a recent news report, ‘Mardi Gras Indians’ in New Orleans have begun filing for copyright protection in their ceremonial suits. Three times a year, members of local tribes don their elaborate costumes and parade down the city’s streets. However, tired of being ‘exploited’ by the ever-increasing number of photographers who use their images to create calendars and expensive prints, some Mardi Gras Indians have sought legal protection in their suits. The suits, which can cost over US$10,000, weigh up to 50 kilograms and often take months to construct, are said to be copyrightable on the basis of them being ‘sculptures’.
It’s interesting to consider how such a scenario might play out under Australian copyright law. As a starting point, of course, there is no system of copyright registration in Australia, so the need to file an application for copyright protection is irrelevant. However, the question remains: Can copyright subsist in a ceremonial suit?
The traditional approach under Anglo-Australian law has been that there can be no copyright in clothing. There exists some scope to argue that the costumes might be artistic works on the basis of them being ‘sculptures’. However, the notion of a ‘sculpture’, while being afforded a more liberal interpretation by the Courts in recent times, still carries with it the hallmark of being carved, moulded or fashioned (or, in line with our statutory definition, a “cast or model” made for that purpose).
It’s more likely that a person arguing for copyright protection in a ceremonial suit here in Australia might be successful on the basis of the costume being a “work of artistic craftsmanship”. Along with Cuisenaire v Reed, the Coogi case represents the strongest articulation in Australian jurisprudence as to what constitutes a “work of artistic craftsmanship”. In Coogi, Drummond J held that a mass-produced bolt of thickly-textured multi-coloured fabric with a complex stitch structure can still be a “work of artistic craftsmanship” and, in doing so, set the threshold at a relatively low level. The case stands for the proposition that a work can be one of “artistic craftsmanship” despite it being mass-produced, machine-produced and/or produced by more than one person.
A “work of artistic craftsmanship” may also be utilitarian or functional (not that the Mardi Gras Indians’ suits appear to be as such), but the central inquiry remains whether some kind of “craft skills” or “sound workmanship” have been used to produce an aesthetically pleasing effect. The suits do appear to fit this mould.
We can only hypothesise whether similar costumes would be afforded copyright protection in Australia, but we’ll continue to monitor developments in the US with interest.