The Law of the Desert

With all this talk of law suits we thought it might be interesting to take a look at some of the legal history of Burning Man.

The issues the community is dealing with today, have come up before. Most significantly, in 2007, one of the original founders of Burning Man, a man appropriately named John Law, sued to make the Burning Man trademark open source and free for Burners to use under a Creative Commons Copyleft License.

Now 48, the former Cacophony Society leader who used to host dance parties in Laundromats, scale the Golden Gate Bridge at night and crash the Chronicle holiday party with a posse of 100 Santas now wants the name Burning Man and its logo released to the public so anybody can use it.

If that’s not possible, Law wants to collect on the creative capital he put into Burning Man — whatever a judge determines it’s worth.

“If Burning Man is really a movement, the name should belong to everyone, not three guys who don’t get along anymore,” Law said.

Read more:

The BMOrg’s response? Fight back. Hard. In court and on the Internet. Retain control of the trademark at all costs. Squeeze this guy out with nothing.

This is the Burning Man trademark today:

US Trademark 78215401, Registration # 2813051

On Saturday, February 15, 2003, a U.S. federal trademark registration was filed for BURNING MAN by BLACK ROCK CITY, LLC, SAN FRANCISCO, CA 94124. The USPTO has given the BURNING MAN trademark serial number of 78215401. The current federal status of this trademark filing is SECTION 8-ACCEPTED. The correspondent listed for BURNING MAN is Terry Gross of Gross Belsky Alonso LLP, 180 Montgomery Street, Suite 2200, San Francisco CA 94104 . The BURNING MAN trademark is filed in the category of Education and Entertainment Services . The description provided to the USPTO for BURNING MAN is ORGANIZING COMMUNITY FESTIVALS FEATURING A VARIETY OF ACTIVITIES, NAMELY, LIVE MUSIC, ART DISPLAYS, AND PARTICIPATORY GAMES; CONDUCTING ENTERTAINMENT EXHIBITIONS IN THE NATURE OF ART FESTIVALS; AND ENTERTAINMENT IN THE NATURE OF ART FESTIVALS.

So unless you’re organizing a community art festival, you’re not in violation of their trademark if you use the words “Burning Man” somewhere. You can even use the words in the context of a community festival, because there’s such a thing as fair use.

BRC though, might think differently, and might sue yo’ ass:

In an international lawsuit BRC was also victorious. In 2008 a European company applied for and received a French trademark called “Burning Man” that it used to market clothing. Although different industries can have the same trademark there are certain requirements when doing so. One such requirement is that a trademark cannot be used if a reasonable consumer would be misled into thinking that the two trademarks are indeed one in the same

Then again, if you’re the Google guys, they might turn a blind eye.

In 2009, Burning Man was chastized by the Electronic Frontier Foundation for legal sleight of hand in their Terms and Conditions, which force you to give many rights up to them:

Those Terms and Conditions include a remarkable bit of legal sleight-of-hand: as soon as “any third party displays or disseminates” your photos or videos in a manner that the Burning Man Organization (BMO) doesn’t like, those photos or videos become the property of the BMO. This “we automatically own all your stuff” magic appears to be creative lawyering intended to allow the BMO to use the streamlined “notice and takedown” process enshrined in the Digital Millennium Copyright Act (DMCA) to quickly remove photos from the Internet.

The BMO also limits your own rights to use your own photos and videos on any public websites, (1) obliging you to take down any photos to which BMO objects, for any reason; and (2) forbidding you from allowing anyone else to reuse your photos (i.e., no licensing your work no matter what is depicted, including Creative Commons licensing, and no option to donate your work to the public domain).

Moreover, the Burning Man Terms and Conditions also strip attendees of their trademark fair use rights. The ticket terms forbid any use of Burning Man trademarks on any website, which means that ticket-holders can’t label their photos “Burning Man 2009” or even use the words “Burning Man” on their Facebook walls or Twitter updates.

The Rule of Law is something imposed on everyone in the Default World, by Courts. It is different from the 10 Principles of Burning Man, particularly “Decommodification”, which tries to keep the Burning Man name sacred to preserve Gifting. This is why it’s hard for Burning Man to punish Krug – they didn’t break any laws in the Default World. That’s why Playa Pranking is a more appropriate and feasible response.

Burning Man’s current Registered Trademark superseded an earlier service mark, owned by Paperman, LLC. This was allowed to lapse, registered again, allowed to lapse again. A real mess.

John Law filed suit in 2007 to protect the mark for the community. According to his defenders, he was forced to do this, because he was named in a dispute between Larry Harvey and Michael Mikel (who now goes by the name Danger Ranger).

John himself tried to pass it off as somewhere between a Cacophony Society prank, and a movement for freedom:

Burning Man was built by misfits who spent more time mocking old traditions than building new ones. In years past, Law has joined fake protests against the movie Fantasia, dressed up as a clown to ride San Francisco buses, and hopped on a cable car naked. Law’s suit, he claims, is a challenge to anyone who would take Burning Man seriously. “That’s my prank; that’s my gift,” he says. “They need to poke some fun at themselves.”

To his detractors, he was just after the money, and using community ownership of the mark as a distraction. Some argued that community ownership of the mark would be bad for the community – this is the “only Big Brother BMOrg knows what’s good for you” argument.

From LaughingSquid:

Here’s the original Burning Man service mark that was owned by Larry Harvey, John Law, and Michael Mikel. It was filed in August 1994,  registered on September 12, 1995, canceled on July 20, 2002 and then later assigned to Paper Man LLC in 1997.

Burning Man service mark

Here’s the current Burning Man service mark that was assigned to Paper Man, allowed to expire then re-filed in February 2003, and registered again to Paper Man, LLC on February 10, 2004.

Burning Man service mark

For more background on John Law’s involvement with Burning Man, check out Brian Doherty’s excellent book “This Is Burning Man”. It provides some great insight on what really went down during the volatile 1996 event and it’s aftermath, which lead to John leaving the organization.

FactoryJoe has a great piece where he compares this to issues facing Open Source software communities.

What’s so interesting and didactic about this controversy is that it embodies, on a grand scale, the kind of micro-controversies that open source communities have faced for a long time around intellectual property and trademark matters.

On the one hand, you have the folks from , the ones who put on the event, fearing corruption and abuse by commercial interests:

…about the idea raised in the lawsuit of putting the Burning Man name and image in the public domain. While the concept is interesting, the reality is that we’ve been fighting attempts by corporations to exploit the Burning Man name almost since the first day we set foot on the playa. Making Burning Man freely available to individuals who would only use it to make money would go against everything all of us have worked for over the years. We will not let that happen.

On the other side, you’ve got folks, like John Law who filed the lawsuit, willing to embrace the chaos, as we often say, and let the market and — more importantly — the community — decide the brand’s fate (given certain conditions):

Burning Man belongs to everyone.

Burning Man is the sum of the efforts of the tens of thousands of people who have contributed to making Burning Man what it is.

The name Burning Man and all attendant trademarks, logos and trade dress do not belong to Larry Harvey alone or to Black Rock City LLC.

If they don’t belong to anyone, they belong to the public domain. If they are in the public domain, the event can still go on and the trademarks, logos and trade dress can still be used. But the event organizers don’t own those things and each and every one of the event participants are free to use these things as they want without permission or interference from the event organizers. There’s nothing to stop the party from being as big and wild as ever.

Then, of course, there are the corporate and commercial interests, who see a huge opportunity to capitalize on the value, reputation and attention-getting that the brand has generated over the years, who, according to reporter Steven T. Jones, envision MTV coverage, a burner clothing line from the Gap, Girls Gone Wild at Burning Man, billboards with Hummers driving past the Man, and other co-optations by corporations looking for a little countercultural cachet.

From Tribe

A lawyer and burner who actually read through Law’s filing pointed out that his filing contradicts his public statement. The legal filing would essentially allow Law to make money off of BM. 

“However in the relief section of his legal complaint he asks the 
court to transfer ownership of the Burning Man trademarks from Burning 
Man LLC to a Limited partnership of which he’d own 1/3. He then asks 
that BM LLC have to pay “fair market license fee” to continue to use 
the name and his “share of fair market licensing fee for all past *un 
compensated and under-compensated* uses of the terms “Burning Man” 
Decompession” “Blck Rock City” and “Flambe Lounge” “. Which, it seems 
to me means he wants BM LLC to pay him a fee based on what they *could 
have charged* for Use of the BM name. (by his estimation 300,000 to 
$100,000,000 for the 2006 burn alone)” 

Whatever the reasons, Law is trying to get paid. He has filed for financial relief for the percieved damages which are probably well in excess of whatever he put into it.

Law himself, to the Guardian:

If it’s a real fucking movement, they can give up control of the name, Law told the Guardian in the first interview he has given about Burning Man in years. If it’s going to be a movement, great. Or if it’s going to be a business, then it can be a business. But I own a part of that.

He maybe did get paid in the end: they settled out of court, for an undisclosed sum. Here’s the summation from Afterburn 2008:

The John Law lawsuit was settled in 2008. While all involved parties agreed that the terms of the settlement would remain confidential, as is common in settlement agreements, suffice to say that the court agreed with BRC and dismissed John Law’s complaint for failure to state a valid claim.

Here’s that dismissal.

More from the 2007 Afterburn report:

The arrangement was a bit awkward, what with PaperMan owning the trademark and Black Rock City producing the event—especially since Harvey and Mikel were on the boards of both organizations. Law was only on the PaperMan board. Other Black Rock City board members had no ownership interests in the Burning Man trademark. The arrangement met its purpose in ensuring that the Man burned each year, but the awkwardness eventually spawned the aforementioned lawsuit.

The first phase of the litigation resulted in the Court disqualifying Law’s attorney for having a conflict of interest, since he had represented both Harvey and Mikel back when they had been in a partnership with Law. In the next phase, the court granted Black Rock City, LLC’s Motion to Dismiss Law’s complaint, since the allegations showed no proof that Black Rock City, LLC had done anything wrong since it had a legal right to use the trademark. That still left the litigation against PaperMan, Harvey and Mikel, as well as the awkward arrangement that brought everyone to court in the first place. The final phase resulted in a confidential settlement between all parties, whereby Black Rock City bought the Burning Man trademark from PaperMan, in exchange for Law dropping his claims against the other parties.

Another key lawsuit was when a Burner fell into the main fire. Perhaps he wanted to be a Burner just a little bit too much for his own good? Rather than regretting his stupidity, or merely being glad to be alive, he decided to sue Burning Man:

Anthony Beninati, a real estate manager from Los Angeles, was badly burned at the September 2005 event in Black Rock City, Nev. He was making his third visit to the weeklong festival, which ends with the torching of a 60-foot wood sculpture.

Once the Burning Man topples, some participants throw objects into the bonfire. Beninati approached with the photo of a friend who had recently died in a motorcycle accident. He walked 7 to 10 feet into the burning embers, with flames on either side of him, threw in the photo, took a few more steps forward, then tripped – over a hidden obstacle, he said – and fell into the fire. He was badly burned on his hands and legs and was airlifted to a hospital.

Beninati’s suit accused Black Rock City LLC, the San Francisco-based promoter, of negligently allowing people to approach the fire without safe pathways.

He lost his case, and appealed all the way to the Supreme Court…who kicked it out, unanimously:

In a June 30 ruling, the First District Court of Appeal in San Francisco said anyone who takes part in an event with obvious dangers – downhill skiing, mountain climbing or walking up to a bonfire – knowingly risks injury.

“The risk of falling and being burned by the flames or hot ash was inherent, obvious and necessary to the event,” the court said in a 3-0 decision that upheld a judge’s dismissal of the suit.

Read more:

The 2009 Afterburn report says that this case established an important legal precedent, that the disclaimer on Burning Man’s tickets works to absolve them of responsibility for anything that happens on the Playa:

The Beninati decision is now established precedent that the notorious waiver on the back of Burning Man tickets holds up in court, “YOU VOLUNTARILY ASSUME ALL RISK OF PROPERTY LOSS, PERSONAL INJURY, SERIOUS INJURY OR DEATH, WHICH MAY OCCUR BY ATTENDING BURNING MAN.” And the law is in line with the “Ten Principles of Burning Man.” Radical Self-Reliance encourages participants to take personal responsibility for their individual choices. Not only is this a foundational pillar of our community, it’s the law.

An earlier case occurred when the makers of Girls Gone Wild style videos made 12 videos at Burning Man. A lot of innocently naked hotties, suddenly found themselves accidental porn stars. Did any of them sign releases? Or assist with releases? These are the questions I would bring to the likes of Christopher Ligori & Associates, if I was a hot girl that suddenly became an actress of the night, without me knowing.

From CNN:

This self-expression takes the form of art, song, dance, theater — and nudity. And where there’s public nudity, there are bound to be cameras. 

Enter Voyeur Video. For the past three years, the company has been filming nude women at the festival and selling the videotapes on its Web site. The organizers of Burning Man call this trespassing, trademark infringement and invasion of privacy, among other offenses, and they’re suing the company. They accuse Voyeur of distributing “pornography and sexually explicit videos” while saying that Burning Man is a “social and spiritual event,” according to court documents.

Voyeur’s president, however, sees no harm in what his company does and does not consider it pornography.

“We just shoot what goes on. Just a bunch of happy naked videos,” said the president, Jim O’Brien, a 40-year-old Los Angeles resident and self-described nudist. “Consider us a news company.”

Voyeur Video, which O’Brien founded in 1989, currently offers 12 Burning Man videos at $29.95 each. The tapes — sold on Voyeur’s Web site alongside such titles as “Kinky Nude Beach Day” and “Springbreak Stripoffs” — show naked women being painted, dancing and taking group showers, while the cameramen make comments like “Man, this is like Playboy,” according to the suit.

This SFWeekly article looks into Burning Man’s legal issues in some depth. Although it’s almost 10 years old, it’s still just as relevant today – highlighting how little things change at Burning Man.

For Burning Man organizers, not wanting the event to be widely portrayed as a rave or Mardi Gras is hardly a matter of aesthetics; stories that paint Burning Man as a big party scene jeopardize its hard-won, cordial relationship with local Nevada government and law enforcement officials — and, therefore, its very existence. Though Burning Man brings cash into Reno and the tiny towns of Gerlach and Empire that sit on the edge of the Black Rock Desert, the festival is still viewed suspiciously by many locals.

“These people, they look different. The onus is on them to, you know, they’re going to be scrutinized,” says Joanne Bond, a county commissioner for Washoe County, through which participants drive and shop on their way to Burning Man. “You can’t have purple hair and not stand out.”

“I have people make comments all the time about Burning Man, and their perception is driven by media coverage,” says Sheriff Ron Skinner of Pershing County, where the event is held. “I think the media has focused on the party atmosphere of Burning Man rather than the art aspects of it. And I think that those people looking to that type of atmosphere have flocked to Burning Man.”

Although they might have won the lawsuits, BMOrg haven’t solved any of these underlying  problems. The bigger the city gets, the more these types of issues will crop up. Especially if every year, 40% of the crowd are Virgins. What can we learn from the legal problems of the past, to take with us into the future?

Black Rock City, LLC is in the process of passing the reins of control and ownership of the party to a new, non-profit, 501(c)3 corporation – the Burning Man Project.

It would be easy for them to raise money by taxing Plug-n-Play camping. And by licensing their mark for off-Playa use in approved events (such as the Regionals. How do you spread Burner culture via Regional events, if they’re not allowed to use the name “Burning Man” at Community Events? There needs to be a mechanism. Maybe Fertility 2.0 means 2 worlds, but one is outside the Playa, and one in the Playa. In the Playa, no brand names. Outside the Playa, it’s OK to see the Burning Man logo at a Regional. Or on the side of someone’s car. Or even (gasp!) on a t-shirt or at a camp fundraiser.

If the non-profit helps the world, then this behavior helps the world because it provides the funds to keep the non-profit Gifting its profits away. It even supports a bloated staff on the payroll of the non-profit, doing who knows what for the 51 weeks of the year that aren’t Burning Man. Paying lawyers from a charity, and keeping everything “exclusive”, helps no-one. Indeed, the world is in desperate need of warriors for justice.

Embrace it, and everyone can benefit and profit from it. Resist it, and you will be fighting more in the future, not less. More Regionals, more Virgins, more media, more problems. How much of the non-profit’s donations will go towards legal fees defending their marks in an increasingly desparate game of whack-a-mole is something we will find out in the future.

19 comments on “The Law of the Desert

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