Dressing up a terrible idea

Early last week, NPR’s Morning Edition ran a story about the Mardis Gras Indians (Wikipedia backgrounder) who are attempting to copyright their costumes in order to collect money from photographers who take pictures of the festivities in New Orleans.  In the words of Howard Miller of the Creole Wild West Mardi Gras Indians:

For years we had the fear that we have been exploited. They [the photographers] had been taking advantage of us and coming in and snapping pictures. In selling the pictures, we see them everywhere – magazines, even in art galleries being sold and we are not getting anything from it.

Enter Ashlye Keaton, an adjunct law professor at Tulane Law School, who is representing Mr. Miller:

[The costumes] fall under copyright protection as works of art, as sculptures because the designs are sewn onto canvas and other materials and they are worn not as costumes, but they’re worn over clothing. So they’re not functional, which qualifies them for copyright protection as a sculptural work of art pursuant to the copyright act.

Mike Masnick over at TechDirt picked up on this story this morning.  Like me, he thinks this is a terrible idea:

[T]his whole thing goes against the very purpose of copyright law, which was to provide an incentive to create. But these guys have plenty of incentives to create that have nothing to do with copyright. Basically, they’re just upset that someone, somewhere might make money selling a calendar of Mardi Gras photos without paying them first….In the interview, the Mardi Gras Indian they interview makes no argument at all about incentives to create. Instead, he goes with the “I think that’s fair” argument for why photographers should pay him. Well, those photographers don’t think it’s fair — and copyright law is not about what someone thinks is fair. It’s about the incentive to create, and it makes no sense in this context.

Masnick makes a few other points:

  • That costumes are clothing a thus cannot be protected with copyrights.
  • That any photographs of the costumes would be a fair use because they would be “transformative” (citing a case about Grateful Dead concert posters).

I think one of the more pernicious effects of the expansion of intellectual property legal entitlements is that people now think they should be paid any time someone else makes money.  This is simply not the way the world works.  I won’t expand too much on Masnick’s points, but I would like to make a few point of my own about unsolicited benefits.

If I buy a house and put a beautiful garden in the front yard, I may well raise the property values of every house on my street.  Does the law allow me to collect any money from my neighbors?  No.

If I squeegee your windshield without being asked to while you are stuck in traffic, can I demand that you pay me?  No.

To be sure, Mardis Gras provides real benefits to lots of people, and Mr. Miller’s costume no doubt contributes to that general benefit.  As a general rule, however, the law doesn’t reward people just because they provide other people with benefits.  Why?  It’s generally unfair to foist such a responsibility on others (that’s why “squeegee men” are considered such a public nuisance.)  Moreover, it’s way too costly for courts to figure out who should pay who in what amounts after the fact.  Far better to let people strike their own bargains — to pay for communal landscaping through a homeowner’s association or to take their cars to a car wash.

If the Mardis Gras Indians want payment from their costumes, they have plenty of options.  They can:

  • collect donations.
  • look for a corporate sponsor, sell advertising, and/or give commercial endorsements.
  • sell their costumes to others.
  • perform in a private parade (with paid tickets).

What they can’t do, however, is simply take those costumes, walk down a public street in a free parade open to the public, and expect to be paid for it.  It just doesn’t work that way.

Copyright squared

There’s a new trend afoot to take the “notice” out of the Digital Millennium Copyright Act’s (DMCA’s) “notice and takedown” procedures:

The company is claiming that the DMCA takedown notice itself is copyrighted and that passing it along will constitute infringement. Of course, this raises some questions.

It does indeed.  For those of you unfamiliar with the DMCA’s notice and takedown procedures, they are a safe harbor that Congress wrote into the DMCA to shield service providers from certain types of copyright infringement suits.  ChillingEffects has this helpful explanation in their FAQ’s:

In order to have an allegedly infringing web site removed from a service provider’s network, or to have access to an allegedly infringing website disabled, the copyright owner must provide notice to the service provider with the following information:

  • The name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)]
  • The infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an “information location tool” such as a search engine, the reference or link to the infringing materials [512(d)(3)].
  • Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].
  • A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)].
  • A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)].

Once notice is given to the service provider, or in circumstances where the service provider discovers the infringing material itself, it is required to expeditiously remove, or disable access to, the material. The safe harbor provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed.

In his analysis, Mike Masnick notes a few of the problems with claiming copyright protection in DMCA takedown notices, particularly issues of authorship (“who owns the copyright”) and registration (“did whoever write this letter actually register it with the Copyright Office?”).  Of course, there are other problems to consider:

  1. First Amendment.  Do we really live in a world in which individuals can be subjected to legal process but cannot talk about what is happening to them?
  2. Fair use.  Among other things, isn’t the posting of DMCA notices transformative?  Is there any market effect that the law cares about?  Or is this like the proverbial “scathing theater review” that Justice Souter said “kills demand for the original” but “does not produce a harm cognizable under the Copyright Act”?  Campbell v. Acuff-Rose Music, Inc., 510 US 569, 591-92 (1994).

It seems to me that if (1) you’re a copyright owner and (2) you think someone is infringing your rights and (3) you want it to stop but (4) you also want to keep it your little secret and not let anyone else in the world know other than the alleged infringer, then you should maybe reconsider (2), because the fact that you are insisting on (4) may indicate that (2) isn’t actually true.

Just a thought.