March 18, 2011
No sooner had Tulane law alum Ashlye Keaton (L ’03) recovered from a whirlwind Carnival season than she began counting down to New Orleans’s next street spectacle of 2011—“Super Sunday”—when “gangs” of Mardi Gras Indians will take to the streets tomorrow (Mar. 20), masked in brilliant feathers and intricate beaded patchwork, to celebrate St. Joseph’s Day. Aside from Fat Tuesday, Super Sunday is the most significant day of the year for the Mardi Gras Indians “to mask”, though both holidays this year will go down in history.
The tradition of “masking,” which dates back to a time when American Indians helped shield runaway slaves and currently is ranked among the most elaborate of New Orleans’ cultural phenomena and the nation’s best folk art, recently has been a hot topic in the nation’s news thanks to Keaton, a local entertainment lawyer and adjunct professor of law at Tulane.
Entertainment Law Legal Assistance (ELLA) Project
, the Mardi Gras Indian Council approached Keaton for legal advice concerning photographers, who for years sold photos of the Indians without permission and without offering compensation. Because costumes and other apparel cannot be registered for such copyright protection under law, many Mardi Gras Indians felt helpless in gaining compensation from commercial photography featuring their suits.
“They were taking pictures and making money and most people told us we were public domain and that there was nothing we could do about it,” explained Howard Miller, Chief of the Creole Wild West Mardi Gras Indians. “But then Ashlye Keaton and the people that work with her found a way [to help].”
After years of working with the Mardi Gras Indians since co-founding the ELLA Project in 2005, Keaton realized that if the suits were registered with the U.S. copyright office as works of art, photographers would be less likely to wrongfully exploit the Mardi Gras Indians. Registering the suits for copyright, she explained, also “reinforces that what these photographers are taking has value.”
“It’s a visual sculpture that happens to be displayed on a person,” said Keaton. “They are entitled to protect that art work. Registering a Mardi Gras Indian suit affords the owner remedies and solidifies a presumption of ownership.”
“To mask Indian” takes commitment, and it is through great personal sacrifice that the tradition is kept alive. Often worn just once, the hand-sewn creations are yearlong works of art, weighing up to 150 pounds and costing as much as $50,000. Nonetheless, Chief Miller explains it’s much more than what meets the eye.
“When you see a Mardi Gras Indian, it’s not Indian. It’s African. It’s not the mask itself. The picture is the mask,” said Miller, “but behind the mask is what it is... behind the mask is African. And this is what we’re trying to do … keep our heritage intact.”
The sole supervising attorney for ELLA, Keaton in the last 3 months has been called on by USA Today, Bloomberg, National Public Radio, and FOX News to name a few. But she is quick to acknowledge the press isn’t about her. “The Mardi Gras Indians sought relief; they initiated this pursuit,” said Keaton. “I am a mere conduit in helping them understand and enforce rights in their discretion.”
Keaton also credits ELLA student volunteers who have been working with the Mardi Gras Indians seeking help. “With respect to copyright registration, ELLA students will help me with the application process,” she said. “Their work will be instrumental in helping some of the Indians avail themselves of the privileges afforded by the Copyright Act.”
Ultimately, Keaton says that among other considerations, she finds the irony of the situation most interesting. “The Mardi Gras Indians used these suits and crowns to ‘mask,’ so that they could assemble beyond the confines of their then-master owners’ property. The same federal government that authorized their slavery is now recognizing their suits and crowns as works of art subject to copyright protection.”
Through the ELLA project, Tulane law students have provided more than 10,000 hours of free, personalized legal assistance to local, low-income artists since 2005. More than 650 clients have been served, says Keaton.
ELLA is a partnership between the Tulane Law School, the Arts Council of New Orleans, and Tipitina’s Foundation.
Thanks to third-year Tulane Law School student Elizabeth Bolles of noladefender.com for contributing to this article.