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Who owns the pictures of a culture?
In 1994, photographer Michael P. Smith sent a three-page letter about his book Mardi Gras Indians to Big Chief Tootie Montana, leader of the Yellow Pocahontas. “I’m very sad about the rumors and misunderstandings now circulating,” wrote Smith, “that I didn’t have your permission to put you in the book, that you weren’t paid and that I’m just making money off your culture.”
Great men, Smith and Montana, both now gone.
Smith was the foremost visual chronicler of the Mardi Gras Indians and second lines. His letter went on achingly about the sacrifices in time, commercial shoots paying for artistic work, the images he gave to people he photographed. He showed me the letter in draft.
“Don’t send it,” I said, arguing that he and Montana should talk through a truce. Smith sent it, and also sent it to me as a blind copy.
The package included Smith’s 1983 letter nominating Montana for an NEA Folk Arts Fellowship, Montana’s letter withdrawing his name, preferring, “my nomination to come from the people who make the culture I represent,” and an earlier Smith letter, trying to clear the air on that.
In 1987, Montana received an NEA fellowship as a Master Traditional Artist. Kalamu ya Salaam’s 1997 biographical essay on the chief, “He’s the prettiest” (LouisianaFolkLife.org) fetures photographs by Smith, suggesting some rapprochement over the image issue.
Questions of image rights in a culture of street performance rise anew in a “green paper” by Big Queen of the Guardians of the Flame, educator and co-founder of the Mardi Gras Indian Hall of Fame Cherice Harrison-Nelson (wife of Big Chief Daryl, Tootie Montana’s son), Sabrina Mays-Montana and Tamah Yisrael for the Cultural Economy and Preservation Collaborative (MardiGrasIndianHallOfFame.org).
They write of an oral tradition wherein “With each telling, particular facts get stretched some, bent a bit, twisted, lost, compressed. But the central truth remains, and the absolutely accurate and clear picture that emerges is of the Mardi Gras Indians as a fierce, compelling, independent culture of resistance.”
They cite the Flag Boy of an Indian gang who, “Walks past a gallery, and sees his own face staring back at him. That’s his face, his suit that he’d spent all year sewing. … This photo of him is for sale in this gallery for several thousand dollars. He never gave permission for the picture, never signed a release. He is not identified in the photo. When the photo sells, he will see none of the proceeds – they will be divided between the photographer and the gallery owner.”
A sign by the gallery door says: “No photographs, please.”
A lawyer defending the photographer would argue public domain: You parade in the street for all to see; you’re giving your picture to anyone with a camera. But in a culture where images are so commodified, the issue isn’t how many pictures get taken, but how many are sold. What is the photographer without a subject?
The musicians’ union has compensation standards for footage shot in the streets, a sliding scale that goes up from news (no pay required) to documentary and commercial projects, depending on audience and distribution. That is only fair. A videographer at a jazz funeral who ends up selling footage to an HBO film is making money from the music of artists in the street.
Still photographs are trickier. An Indian or a brass band player is frozen in time: no sound. Pictures you take and put on your wall are not like ones sold for profit, which carry a reciprocal link. Imagine that Flag Boy photograph, dear reader. Now imagine yourself behind him on the street, your entire self and radiant smile as grand parallel in that picture of Flag Boy. So there you are, standing in the gallery, and someone writes a $2,000 check for Flag Boy in Blue Feathers with your beaming smile in the background. Flag Boy wants his piece. What about you?