Published by LawTechie - March 2, 2011 - LawTechie

This year the Mardi Gras Indians in New Orleans intend to copyright their intricately designed costumes. NPR reports:

Extravaganzas of feathers, rhinestones and beads. And this year, some of the Indians hope they’ll be able to share in the profits from photos sold of them after the parades.

The legal basis for copyrights on articles of clothing has been a long-contested subject touching on the separability doctrine, which requires courts to separate the copyrightable “creative design” aspects of an article of clothing from the non-copyrightable “functional” aspect of the clothing — this is obviously difficult to accomplish for most types of clothing.

Accordingly, the Federal Circuits are split on whether clothing designs may be copyrighted, with a recent trend (5th Circuit and 2nd Circuit) in favor of copyright. It should be noted that while revelers take the copyright route to seek profits from pictures of their costumes, the Fair Use Doctrine would serve to protect any news-related photographs from such profit seeking and, at the same time, a State right of publicity should provide revelers with an equally sufficient cause of action with regards to commercial photographs.

Editor’s note: In 2005, our firm’s senior partner, Anthony Handal, successfully argued for the overturn of the 2nd Cir.’s 200-year-old precedent which had denied copyright protection to clothing articles (specifically costumes) in the landmark case CHOSUN INTERNATIONAL INC v. CHRISHA CREATIONS LTD, 04-1975-CV (2nd Cir. 2005),

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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