by Whatsblem the Pro

People who don’t know what Burning Man is tend to assume that it’s just another festival; a place where consumers go to enjoy passive entertainment arranged by event promoters. Burning Man’s not like that, and it never has been.

What would we have, if the only work that got done out there on the playa was what the Org either paid for or did themselves? If there were no volunteers, no independent artists or laborers or engineers or architects or visionaries or weirdos or pranksters or sex deities or bartenders? Nobody out there just doing their thing?

Attendee participation is fundamental to Burning Man, and it is what provides us with 99% of the shade, art, diversions, exposed flesh, alcohol, and other critical resources to be found in Black Rock City. Even most of what the Org provides gets built, torn down, and cleaned-up after with volunteer labor, and all of it gets paid for with money we give them. Imagine if all those burners who put all that time and money and effort into being amazing on the playa – all the people who aren’t part of the Org or paid by them – were suddenly replaced in the middle of the burn by passive attendees looking to be entertained and vended to in exchange for their ticket purchase. There would be no Burning Man. There wouldn’t even be a festival; instead, we’d have a major tragedy in an artless, corpse-littered desert wilderness: Thirsting Man. Mummifying Man. What-the-Fuck-are-You-Doing-Here Man.

In short, it’s a huge mistake to give the Org too much credit for Burning Man. Burning Man co-founder John Law understood that; back in 2007, he wrote:

“Burning Man, since it’s inception has depended upon the gratis efforts of many. Since my leaving active organizing of the event in 1996, it has become a huge business generating more than 8 million dollars a year. Some people are paid quite well for their efforts. If the organizing core of the event believes, as they say quite clearly in their literature that the BM concept is a true movement, and has an opportunity to really make a difference in peoples lives and ideas around community, the arts, etc., then they shouldn’t have a problem releasing the protected trademarks Burning Man, Black Rock City, etc to the public domain where ANYONE can then BE Burning Man. Doing this will not impede their ability to manage and organize the event, sell tickets, pay themselves, and any artists, vendors and tradesmen as they choose using ticket sales receipts.

The only thing that would change is that NO ONE would be able to capitalize on “Burning Man” by licensing the name or selling it or using it as an advertising pitch. There is no other reason to retain these legal ownership titles other than to capitalize on their brand value at some later date.

I was defrauded by Larry and Michael’s actions. I hope they choose to do the right thing and give Burning Man to the people.”

Of course they didn’t give Burning Man to the people. They settled with John Law on undisclosed terms instead, and they’ve been jealously guarding the brand they officially own ever since. . . and that eight million dollars? It’s now up to over thirty million.

Yes, I said “jealously guarded,” and there’s no hyperbole in that. . . if anything, it’s an understatement. In 2009, digital civil rights watchdog the Electronic Frontier Foundation slammed the Org for their ticketing terms and conditions, saying “It’s bad enough that some companies routinely trot out contracts prohibiting you from criticizing them, but it’s another thing altogether when they demand that you hand over your copyrights to any criticisms, so that they can use the DMCA (Digital Millennium Copyright Act) to censor your own expression off the Internet.”

Having recognized that the Org may very well have good intentions behind their terms and conditions, the EFF still notes that “the collateral damage to our free speech is unacceptable.”

The Org’s defense to this is that their over-reaching and draconian measures are necessary to protect Black Rock City culture. Some would say that by ‘protect’ they must mean “reserve it for their own exploitation.” The most charitable interpretation I can make of the Org’s response to the EFF is something like “we don’t trust burners to do it themselves, and we lack the imagination to come up with a solution that isn’t a massive violation of peoples’ rights all year long, everywhere.”

The corporation that runs Burning Man is slated to become a non-profit, but this has not yet happened, and it won’t necessarily make things better, or curtail the ability of board members to skim off massive paydays for themselves. For now, the Org is still a non-transparent, for-profit corporate entity whose board members primarily serve their own interests behind closed doors. With most of their operating costs paid for out of the pockets and sweat glands of volunteers, they control tens of millions of dollars per year in ticket revenue alone. . . yet they seem to have zero respect for the people who not only give them that ticket revenue, but also literally build and painstakingly strike the event that makes it possible for them to sell tens of millions of dollars worth of tickets in the first place.

Zero respect doesn’t mean zero interest. Off-playa, the Org seems all too eager to establish and maintain a Disney-like control over every aspect of burner culture they can get their hands on, a process that effectively quashes the very freedom and can-do DIY attitude that burners thrive on and that the Org themselves love to trumpet as their greatest triumphs.

Given the amount of lip service that the Org gives to the idea of spreading the culture as widely as possible, it seems both hypocritical and graspingly self-serving to exert the kind of stranglehold that they do on ‘their’ trademark. That kind of control freakism is par for the course, though. Regionals must adhere to a strict set of policies and rules set by the Org, just to be ‘officially’ recognized as nothing more than organized groups of burners. Try to organize anything bigger than a living room sleepover while self-identifying as Burning Man enthusiasts, and you’re asking for unwelcome attention from the vultures in the Org’s legal department and their mania for protecting the Burning Man brand from the very people who give that brand its value.

The Org even has an official set of rules for online communities, and they are both dismayingly extensive and incredibly oppressive. Rudeness, vulgarity, being disrespectful, being snide, being overly-critical of the Org, or even wandering off-topic are just a small part of what is explicitly forbidden.

“They want burner-oriented Facebook groups to enforce all those rules for them. So naturally, nobody wants their group to be official,” says Michael Watkiss, an administrator of and participant in several such groups. “The official rules are just way too strict.”

The words of John Law echo in our ears: “There is no other reason to retain these legal ownership titles other than to capitalize on their brand value at some later date.” The Org’s death grip on the Burning Man trademark is a visible sign of their preparation of new revenue streams – at the culture’s expense – in order to maintain and increase the personal income of board members in the face of their imminent reconfiguration as a non-profit organization.

There are a surprising number of Burning Man groups and pages on Facebook, most of them unofficial, created and administered by volunteer burners. They range from the Org’s own heavily-moderated Facebook page to various Regional or special-interest groups, including one called “Burning Man Sucks.”

The administrators of these groups are, of course, unpaid volunteer burners. To one degree or another, they strive to keep their groups lively, useful, and relevant. One thing plagues them all: advertising. People show up in their groups and post ads, aka ‘spam.’

The largest Burning Man group on Facebook, with some 28,000 members, has this problem all the time. “We have to be constantly on the watch for spam,” says Watkiss. “We’re a decommodification zone, no advertising allowed. The only exceptions are for events and fundraising that directly benefit either recognized Regionals, or art projects that are destined for the playa.”

It’s easy enough for the admins to just delete the totally unrelated marketing blather that washes up in our online communities, but some of it isn’t totally unrelated, and is posted by burners themselves. Somewhere between the exceptions made by Watkiss’ group and the realm of outright corporate spam, there lies a grey zone of burner-oriented advertising by and for individual burners. Deleting a corporate sales pitch for diet lard, the latest model of Pootmobile, or low easy payments on plutonium siding for houses is trivial; deleting a fellow burner’s post in which he’s trying to sell the yurts he builds can cause friction.

“It’s often cut-and-dried,” says Watkiss, “but the grey areas are very, very grey indeed. That can really generate a lot of anger.”

Recently, a small group of volunteer administrators like Michael Watkiss put their heads together over an improved solution to the spam problem that wouldn’t shut out individual burners from making contact with each other and buying and selling things. “A guy from one of the Regional groups told us that his people opened a second Facebook group strictly for buying and selling things to each other,” Watkiss explains. “It seemed like a great idea, so we talked about starting one for burners all over the world to use. It keeps the buying and selling out of the main groups, but gives it a place to happen where we can still guard against people from outside the culture trying to market random junk to us. Decommodification is wonderful in its place, but it shouldn’t mean that burners are forbidden from ever having any commerce with each other, anywhere. This way the burners on Facebook get their burner swapmeet if they want it, without polluting the main groups with commerce.”

The charter of the new group, dubbed “Burning Man Classifieds,” reads as follows:

This group is given to the burner community as a place to freely post any appropriate advertisements we wish. Funding an art project? Tell us about it. Need a new roommate, or a job, or a car, or a rideshare, or some exotic materials for your art? Try us. Want to sell something? Give us your best pitch. You can even beg here, if you think your cause is good enough to garner donations. You can even look for a date! What you can’t post: MLM pyramid schemes/scams, obvious attempts to market to us from outside our community, and blatant trolling. Everything else is fair game; the admins will use their best judgment in sorting the wheat from the chaff.

PLEASE THINK BEFORE YOU POST. This is a worldwide group of people. If you post an ad looking for a room to rent, for instance, then we need to know where you are. Not the intersection, the city and State (or Province, etc.). Try not to make extra work for the volunteer administrators, or we might assume you’re a troll.

If you administer a Burning Man related group and would like to help us out, get in touch with one of our admins so we can add you to the team.

Just a week after the new group’s inception, the Org seems to have taken notice in a big way. “Apparently, they’ve been sending thinly-veiled legal threats to one of the administrators,” says Michael Watkiss. “They don’t want the group to use the phrase ‘Burning Man’ because they say it violates their trademark.”

Trademark infringement is not so simple, though. In most cases of alleged infringement, the acid test is consumer confusion. If the defendant isn’t selling a product that consumers might think came from a different manufacturer because of the trademark, then generally speaking, no infringement has occurred. There are also protections for non-commercial use of trademarks, and for parodies.

Michael Watkiss: “I don’t understand why the Org would think they have a leg to stand on. Nobody owns the group, and nobody is making money by running the group. It’s just a place for burners to have a funky little swap meet with each other. The group itself is not a commercial enterprise, and nobody is going to confuse a Facebook group with a giant week-long arts festival in the desert. The idea that there’s some kind of trademark infringement going on that requires their legal team to swoop in is just silly.”

According to Watkiss, the Org’s legal team suggested that a name change to “Burner Classifieds” would be sufficient to call off the dogs. . . but sadly, most people – including the State – still think ‘burner’ means someone who smokes a lot of pot. “It makes it harder for our tribe – burners – to find Burning Man communities that aren’t controlled by the Org, and encourages both dilution and demonization of our communities by making outsiders think we’re all about drugs.”

Watkiss’ complaint seems to hold water.

“I ordered ‘BURNBRC’ license plates from the State of Nevada for my pickup truck,” burner Jawsh ‘Sparrow’ Holle told me. “They printed the registration that way on the spot, but then the State sent me a letter saying they wouldn’t issue the plates because the word ‘burn’ was drug-related, and I had to change my request. I asked for ‘BRC LUV’ instead.”

Trademark law protects people using phrases that can’t be adequately expressed with an alternate phrase, especially for non-commercial uses, and particularly when there’s no consumer confusion likely. The Org’s attempts to exert total control over the term “Burning Man” aren’t just contrary to everything they say about fostering community and culture, they’re also unsupported by trademark law.

“It’s all been very politely worded,” points out Watkiss, “but the implicit threat in these messages from the Org is very clear. It’s the iron hand in the velvet glove. If they can’t be in complete control, the Org wants to marginalize us. . . and we’re burners!”