Do Not Use The Words “Burning Man” [Updates]

Burning Man’s placement team have used their newsletter to clarify for us exactly what the rules are in relation to their trademark – helping explain how to get sued by Burning Man.

And it’s just like I was saying in the last post. See for yourself – amongst other restrictions, camp fundraisers may not use any photos from the event – of the camp, or anything else.

Originally, I posted this at dinner from my iPhone, and didn’t have time to expand. I just thought it was so relevant to the post I’d just done, quoting Scribe’s essential division of Burners into 2 camps – those who think the BMOrg should be a totalitarian state and the founders should get all the profits and control it from a closed room committee, with no oversight or regulation…and those who think we Burners make the party, we are all stakeholders in the ownership of the intellectual property too. Read the latest statement of the official position, then I will discuss at the end..

This is a public service announcement from Burning Man’s Intellectual Property Team.
Fundraising season is now in full swing, and questions from many of you have been making their way to us on the use of Burning Man’s intellectual property for fundraising purposes.
We hear you!
We therefore thought it might be helpful to share Burning Man’s approach to intellectual property (aka “IP”) with you, and how our collective IP can be used in fundraising, in case anyone still has any questions.
There are Three Topics we will address in this email:
  1. Gifting of items containing Burning Man Logos or images
  2. Use of the words “Burning Man” or “Black Rock City”
  3. Personal Use of Photographs taken at the Burning Man Event
1. Gifting of the Trademark 
Burning Man has federally registered symbols depicting The Man and words like  “Burning Man,” “Black Rock City,” “Decompression,” “Burnal Equinox,” and “Flambe Lounge” as trademarks of Burning Man.  We do this so that we can protect these symbols or words and make sure that third parties cannot use these items for commercial or other unwelcome purposes, or otherwise associate themselves with us, causing confusion as to Burning Man’s involvement. This also helps us preserve the Decommodification and Gifting Principles that are an important part of our culture.  While Burning Man protects its trademarks from unauthorized use by third parties, Burning Man always encourages the community to incorporate and use the trademarks in their art and projects on the Playa.
 To This End and in keeping with the Gifting principle, Burning Man permits  the use of Burning Man’s trademarks (Man logos and images) on items to be GIFTED both on and off the Playa.  
Totally OK: 
Items with the Man trademark can be gifted at fundraising events as a thank you, note of appreciation or recognition, or as a reward in return for some achievement, contribution, or lampoon.
(Example: keychain with trademark for guests of your fundraising event or lighters with the trademark for your theme camp crew)
Projects with Kickstarter Campaigns (or similar fundraising tools) have permission from Burning Man to  gift items at various price tiers that contain Burning Man’s trademarks or photography.(Example: Donate $15 to our Kickstarter and get this “gift” mug with the Man symbol- OK) 
Not OK However:
You cannot sell any items with Burning Man’s trademarks. This includes vending online in peer-to-peer resale spaces as eBay or Etsy(Examples: selling a Burning Man logo t-shirt for your theme camp on eBay or selling earrings with the man symbol on Etsy- Not OK!)
2. Use of the words “Burning Man” or “Black Rock City”
Now, a word about words.  You may use the term “Burning Man” or “Black Rock City” as part of descriptive text, but do not use these words as the central adjective (or only adjective).   Burning Man does not want people confused about who is sponsoring or producing the event.  See the examples below.
Totally OK:
“A Fundraiser for Camp Forgotten Monsters at Burning Man.” Or
“A Fundraiser for the John Frum Institute Art Project at Burning Man,”
Not OK:
Burning Man Fundraiser for Camp Forgotten Monsters.” or
“Burning Man Fundraiser for the John Frum Institute Art Project.”
Nuanced, but different. Two Fundraisers doing art events.
  1. Personal use of Photographs. 
Anyone who comes to the Burning Man event is allowed to take photographs for personal use. This means it is absolutely ok to share these images with friends, post these images on social networks, print personal copies and share your media in informal presentations. However, as soon as the use of media taken at the Burning Man event expands to non-personal use, you need advance permission from Burning Man. See examples below.
Totally OK:
Posting images from the Burning Man event on Facebook to your personal account;
Gifting your friend a lovely photo from the event.
Not OK However:
Posting images from the Burning Man event to your Theme Camp Fundraiser Page or website;
Selling images captured at Burning Man in any manner.
If you want to sell or post photos professionally, you must work with press@burningman.com for permission to shoot, record and distribute images you take at the event.
Given the kinds of questions that have been raised, and the uses we allow for fundraisers, hopefully we have answered any questions you may have regarding Burning Man’s approach to intellectual property.
But if you do have any more questions, please feel free to shoot us an email at:
Thanks again, VERY much, for all the wonderfully mind-blowing stuff that you are doing!  We wish you a very successful fundraising season ahead!

What’s new? Well, you have to look at the use of the language. Someone there – and maybe it’s more than one person involved in this – is trying to claim ownership of more than they really have. A cheek, when their ownership in the first place has been disputed since the beginning. There’s a long history of arguments and lawsuits between the owners, the founders, and the Burners over all this stuff. I never signed a contract with Burning Man, did you? Maybe you did. They try to have implicit contracts in the legalese on the tickets, in your application on the web site, any chance they can – to make it seem like you’ve entered into a contract with them. This is similar to Apple’s 48 page license agreement – did you read it? Did you sign a contract? Or did you just click “Agree”? This is a VERY grey area of the law that has yet to be effectively tested for enforceability in the United States.

What do I mean by use of language? I only did one year of Law at college, my grades were pretty good but it was not my thing. However, in my career I’ve had to deal with lots of lawyers abouts lots and lots of different things. Particularly pertaining to software and intellectual property. I’ve asked Burners.Me’s resident Samoan Attorney General Counsel Toburn to chime in but he’s no doubt out at some fabulous musical event tonight.

So for now you’ll have to follow my lead, if I’m wrong or it’s arguable, please comment. Let’s look at the first blatant example:

Burning Man has federally registered symbols depicting The Man and words like “Burning Man,” “Black Rock City,” “Decompression,” “Burnal Equinox,” and “Flambe Lounge” as trademarks of Burning Man. We do this so that we can protect these symbols or words and make sure that third parties cannot use these items for commercial or other unwelcome purposes, or otherwise associate themselves with us, causing confusion as to Burning Man’s involvement. This also helps us preserve the Decommodification and Gifting Principles that are an important part of our culture. While Burning Man protects its trademarks from unauthorized use by third parties, Burning Man always encourages the community to incorporate and use the trademarks in their art and projects on the Playa

Weasel words. “Federally registered symbols” – the first red flag. What does that mean? Why don’t they just say trademarks? Perhaps it’s because they own copyrights, and design marks, and even some trademarks – but they do not AT ALL have control over the common English words “Burning Man” in the way this paragraph implies.

First of all, it’s common use words. They can trademark “Facebook” but they can’t trademark “Face” and “Book”. Sony owns “Playstation” but not “Play” or “Station”. If you make a logo with the words “Face” and “Book” in it, that is blue and white like the Facebook logo, you might encounter issues of trade dress – if not misleading imitation. But you can say “use my face book” or “face my use book” or “face book my use” as long as you want (although the last one is somewhat arguable, since “to facebook” has become a verb associated with the software company’s brand).

Next, there are different categories of trademark. So Apple Computer, Inc., owns the trademark on “Apple” in the computer space, but not in the food space. And not in the music space either – the Beatles’ label Apple Records famously got there first. We’ve covered this before: in the United States, Burning Man owns the trademark “Burning Man” for community festivals.

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.

alex grey burning manSo you can’t have an art event with live music called Burning Man. And you might not be able to have a live music event with art, either. An electronic music festival? With VJs lighting the stage, but no art displays or participatory games? Seems to me that would be completely fine. Bring a few art cars, get Alex Grey there live painting, and you might get in trouble if you’re calling it Burning Man. Call them “light cars” or “flame cars” and you might be sweet.  There’s no reason why you couldn’t have a clothing label – although they’ve sued against this in the past successfully. It’s the same thing for Decompression – you can’t have a musical event called that without their permission as mark owners, but you can sell diving equipment.

This is not legal advice, you want to do something like that go and get a professional opinion. But this is my armchair opinion. As long as you make it clear that you are NOT affiliated with the owners of the Burning Man trademark for the community festival category, which might confuse the consumer, you’re completely fine. And if your use of the trademark is not in the category of trademark they own (Community Festivals featuring Art, Live Muisc and Games), you’re fine (except if someone else owns a mark in that category). That’s what the law says, as far as I can tell.

You wouldn’t get that from reading the trademark ownership the way BMOrg describes it, would you?

I understand their request that “you can call this Tiki Island Burning Man fund raiser, but you can’t call it Burning Man Tiki Island fund raiser” is not unreasonable. That is: if they were the owner of the trademark “Burning Man” for fundraisers. But they’re not – they’re just using clever legalese to make it seem like they are.

Thirdly, relevant to the concept of getting there first, there’s the question of prior art. Some readers with more formal qualifications have pointed out that this applies to patent law, not trademark law. Still, I can’t just go out and trademark “The Bible” and say that I own that now.

musical festival called “Burning Man” was held in the exact same space, with many of the same people, before Black Rock City, LLC was formed, and the words were in common use to describe a certain style of music festival by the time this trademark was filed in 2003. There was an original “service mark” filed on September 12, 1995, and there were some legal stoushes over its ownership before the refiling of the new trademark in 2003. The original event held on Baker Beach with a flaming effigy has its roots in the Cacophony Society, who first brought this motley crue out to Black Rock City in 1990; the first official use of the term “Burning Man” in relation to this festival is murky, but the other day when I was doing the historical research I called it as 1996. Anyway, years before the formation of Black Rock City LLC, and tens of thousands of people already using those generic words to describe a particpatory music festival. According to Wikipedia, Burning Man started in 1986, but 1996 was the year everybody gave it a name:

1996 was the first year a formal partnership was created to own the name “Burning Man” and was also the last year that the event was held in the middle of the Black Rock Desert with no fence around it.

Going back even further, pioneers in the American desert have been throwing events based around a “Burning Man” for over a hundred years:

Zozobra (“Old Man Gloom”) is the name of a giant marionette effigy which is built and burned every autumn during Fiestas de Santa Fe in Santa Fe, New Mexico, usually during the second week of September. As his name suggests, he embodies gloom; by burning him, people destroy the worries and troubles of the previous year in the flames.[1] Anyone with gloom that they need to get rid of can come by the offices of the Santa Fe Reporter in the weeks leading up to the burn to drop off slips of paper with personal gloom written on them. Many people put legal papers in the gloom box as well. At the festival the papers from the gloom box are placed at Zozobra’s feet to be burned alongside him.

Fiestas de Santa Fe has been held since 1712 to celebrate the Spanish retaking of the city in 1692 by Don Diego de Vargas from the Pueblo tribes who had occupied the city since the Pueblo Revolt of 1680. The burning of Zozobra dates from 1924. William Howard Shuster, Jr. came up with the idea of creating the effigy, also called Old Man Gloom, and ritual burning. Zozobra means “anxiety” in Spanish. Shuster’s idea was probably influenced by Mexican cartonería (papier-mâché sculpture), especially the effigies exploded during the burning of Judas that takes place on Holy Saturday or New Year’s Eve, as a way of ridding oneself or one’s community of evil.

Today in Santa Fe more than 50,000 people go to watch Zozobra, who stands fifty feet tall. His burning marks the start of three days of celebration that includes traditional mass at St. Francis Cathedral; a reenactment of the Entrada, when Don Diego de Vargas returned to the city; a Children’s Pet Parade; and the Historical/Hysterical Parade. The Kiwanis Club of Santa Fe builds Zozobra and burns the effigy at Fort Marcy Park. The Zozobra that was burned on September 7, 2007, was certified by Guinness World Records as the largest marionette in the world,[1] measuring 15.21 m (49.11 feet) in height.[2

‘an ere’s one for da ravahs…innit guv’na…

38 comments on “Do Not Use The Words “Burning Man” [Updates]

  1. When I originally commented I clicked the “Notify me when new comments are added” checkbox and now each time a comment is added I get several emails with the same comment.
    Is there any way you can remove people from that service?

    Thank you!

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  16. please help me understand this , BM is asking states to start Pages on face book and has many pages BM pages them selves on FaceBook , I read the FaceBook terms of use , and photos that get posted on face book become the property of facebook and can be used for anything facebook wants and even after removing said materail they still have right for 30 plus days , catch 22 or what ????

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    • Bubba John this is a very insightful take. As I’ve said I’m no lawyer but I think you’re right. Burning Man says they own it not Facebook. Anyone posting it to facebook is stealing it from Burning Man to give the commercial right to Facebook. If a photoshoot is $150,000 then BMOrg could argue that any photo any one takes at any Burning Man ever is worth at least that: so when anyone posts it to FB and transfers that right to them as per Facebooks terms of use, they have robbed Burning Man of their rightful profits, in order to help Mark Zuckerberg. Turning any Burner who ever put a photo on Facebook into a pirate.
      BMOrg did update their policies to include a Creative Commons Clause but as BJ has pointed out this conflicts with FB’s terms of use

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  18. This sounds fine to me. It seems you always want to find fault in the bm organization… from ticketing to use of a trademarked word. The rules are simple and legal. What is the problem?

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    • Camps have been throwing things called “Burning Man fundraiser” for years. They should be allowed to keep doing that, and use photos of their camp at the event. What is the problem with that?

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  19. My Samoan legal education tells me:”it’s complicated.” Some things ring true, a lot looks like a land grab. I think there is irony in the theme, likely unintended, of cargo cults as “getting atolls ready in case the allied military forces need to use them…”

    The wording of symbols is, they filed the word marks ‘burning man’ and ‘black rock city’ and some design marks too, likely with the words, and they have the cash and resources to try to stop you if they don’t like the way you may be using what they think they “own.”

    Likely gonna be a case by case basis. Someone should challenge. Be interesting.

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  20. Been a patent laywer almost 20 years. There’s no such thing as prior art in the trademark field; that only applies to patents/inventions. As long as your proposed trademark and your use of it meets the other conditions, you can register it as your own exclusive federal property even if it was used by someone else for the last 100 years in the same category, goods, and way – as soon as that other party abandons or otherwise fails to maintain the mark’s registration.

    I like what you say, but equally I see what Seem like could all be decent intentions behind the legalese. I am no big fan of tm or copyright, but I really can’t see how BMOrg could Avoid using those tools to keep douches out there – including opportunistic non-Burners – from making a shitshow.

    One problem I do have is the ambiguity of the “your … Fundraiser page or website” – is ‘website’ modified by ‘Fundraiser’ or not? If Not, their position is that no one may have BM pics on their public website of any kind other than FB. That would seem way too far to me.

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    • thanks for the professional advice – what about their use of the words “Burning Man”, which would seem to be common words in the English language? Can I trademark “the wheel” ?

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  21. Larry Harvey’s self sustaining circus…. We charge you to do all the work for us- and you better not mention who it’s for.

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  22. ummm – so I assume if you don’t try to sell anything with the Burning Man name or image, just maybe the BM corp-officers will not go after you………..just like Disney, well – actually Disney will go after you for any use of their name or logo… just saying.

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  23. Two thoughts, I’m not an attorney, but I’ve had some life experience with intellectual property. I was helping in the filing of a patent, and came across another previously filed patent that basically was a rip off of the invention I was helping to patent. This rip-off patent was granted, obviously, by somebody in the patent office who didn’t do their homework when reviewing the cited prior art. In other words, it didn’t take much for somebody to get a patent on somebody else’s invention, due to poor diligence in the patent office.

    Another thought: did you see the debacle around the Krug champagne photo shoot last year? Where KRUG champagne surreptitiously set up a catered dinner during the event and brought in professional photographers, and then published the photos in Town and Country magazine and other places. I read that they are constantly busting people who attempt to do similar, and for this, i’m grateful that BMorg has the language that they do regarding commodification of the event. I feel that allowing any slightest infraction of that tenant would seriously change the flavor of this event. They sent letters to those who were so naughty, and images were taken down. And I’m glad – the pictures were nauseating and cast the event in a light that was pretentious and inauthentic.

    Thanks for the passionate and thought provoking post.

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    • Well put Lady Di. Even though we would love to exist in world that doesn’t behave the way Krug Champagne does. We do not. And burnersxxx, they’re getting paid for those shoots because that is the only way our legal system is capable of doling out punishment. The BMorg has to have some way to go after organizations and individuals that explicitly break the rules. Yeah, there are RULES! Deal with it. I have previously heard, and it was stated at the end of the documentary “Spark: A Burning Man Story”, that the BMorg is in the process of transitioning to a 403b non-profit organization in the hopes that the organization will be able to continue on after they are gone. And comparing them to Disney, are you kidding me? I work in the entertainment business and I have friends who have worked for Disney or Disney owned companies (there’s a lot of them) and the BMorg is NOTHING like Disney.

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