Part 2 of 2. In honor of Mardi Gras, this blog post replaces our regularly scheduled Tech Tuesday installment.
The New Orleans Code of Ordinances, Chapter 34, is simply titled “Carnival, Mardi Gras.” It begins with a list of defined terms familiar to New Orleanians, such as “Flambeaux” and “Tandem Float,” and distinguishes between a “Truck Parade” and a “Float Parade.” Most of the code lays out basic guidelines for safety and spectacle, including rules for parade permitting, float safety, the minimum number of marching bands per parade (7), and so on. However, controversy has erupted this year over Carnival Code Article V, which bans Mardi Gras participants from distributing any “doubloon, trinket or other throw which . . . displays, conveys or communicates any . . . political . . . message.”
To understand why this is suddenly causing such a stir, know that roughly nine months ago, the city of New Orleans removed high profile Confederate and Reconstruction era monuments from public display. The most famous of these was an iconic statue of General Robert E. Lee, which stood since 1884 atop a massive column in the center of Lee Circle, a key part of the route most Mardi Gras parades must follow. This Carnival season, local vendors have reported selling at least 6,000 strands of beads displaying the words “Forever Lee Circle” with a depiction of the statue. Some New Orleanians believe that Article V’s restriction on political throws is an impermissible suppression of free political speech on public streets, as guaranteed by the First Amendment to the U.S. Constitution. The city appears prepared to argue that Article V meets the high bar of being a valid time, place, and manner restriction under established jurisprudence, which has hinted in the past that blanket, content-neutral suppression of political speech on public streets might be permissible under certain circumstances (See Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980)). If this issue were to be heard in court, it might prove a fascinating extension of existing First Amendment case law, and potentially a star turn for Mardi Gras in the hallowed halls of the Supreme Court.
Federal Law has also come to impact the lives and work of the Mardi Gras Indians. An indispensable part of New Orleans folk life, the roots of the Mardi Gras Indians stem all the way back to the 1700s. The first formal “tribe,” the Creole Wild West, was founded in 1885. Today, Mardi Gras Indians are best known for their elaborate, intricately handcrafted suits. These suits cost thousands of dollars to construct, and are typically worn only a few times after twelve months of design and effort before work begins on the next year’s ensemble. As the new millennium dawned, Mardi Gras Indians were increasingly frustrated that as they spent their personal money, time, and talent to fuel and continually develop this staple tradition, unaffiliated photographers were making money snapping pics and selling prints of the suits. Hoping to protect their intellectual property from this type of unauthorized derivative work, Mardi Gras Indians have started registering their suits as works of sculpture with the United States Copyright Office. It is unclear whether a court would honor these copyrights because of limitations in American jurisprudence for the protection of intellectual property in fashion, yet these registrations and a campaign of public awareness have discouraged photographers from profiting off the work of Mardi Gras Indians without first obtaining permission and sometimes a licensing agreement. New Orleans, land of dreams, where John Locke’s Sweat of the Brow doctrine meets “Iko Iko.”
- Watch live Mardi Gras coverage all day on WDSU
- House of Dance & Feathers for great information and photos
- The ELLA Project pairs New Orleans culture creators with intellectual property and entertainment attorneys.
- A relatively fresh look at John Locke’s Sweat of the Brow doctrine in American legal history.