The Fishy Smell of Corporate Excess

Whatsblem the Pro recently published a very interesting discussion with Official Burning Man blogger (Burning Man Official Blogger? Burning Man Blog Official?) Caveat Magister. One aspect of the discussion was the way art and money have always been intertwined, in some ways it is a symbiotic relationship.

fish tankThe most successful way the art world has dealt with this throughout history seems to be the Patronage model. The wealthy patron provides the artists with room, board, and materials, usually in a space that lets them get away from the conventional world to focus on their art. The Patronage model has always existed at Burning Man – if you follow Whatsblem’s icthyosaur link you can read about one such anonymous donor who by creating the Generator in Reno is enabling other Burners with a collaborative space, not just their own tribe. In San Francisco, some of the Burners I know have recently “crowdsourced patronage” with [freespace], an experiment in temporary zones that hit its Indiegogo fundraising goal and appears to have been successful.

It is the Patronage model that is most hurt by the BMOrg’s heavy handed “Do Not Use The Words Burning Man” and “we own your photos not you and we will charge magazines to publish them” approach, especially in 2013 when we live in this brave new world of crowdsourcing, social networking, and the sharing economy. “Snapchat” and “you voluntarily assign copy rights to us implicit in your ticket purchase”, are two alien dialects that may possibly never be translated into a common communication. Just as BMOrg are starting to really crack the whip and get the leash out on destroying any members of their community who dare to use photos of themselves or their camps at Burning Man – even the dinosaur content industry, which fought against the Internet for more than a decade, is now adopting the “all you can eat” inclusive, sharing economy models of Pandora, Netflix, Soundcloud, Instagram, Facebook, Hulu. Ten years ago, these guys were thinking like BMOrg are today. In ten years time, they will all be trying to figure out how to be more like Snapchat – which is a truly new business model, one that captures the zeitgeist. Snapchat away all you want, if the photos are temporary how can BMOrg ever catch you?

In the meantime, any Burners who want to attend Burning Man have BMOrg to deal with. They’re struggling to catch up with the 2000’s, when people could take pictures from a cellphone. They only recently decided they should try to own YouTube. Patronage? That’s a model of the arts from the Rennaissance. That would be too hard, too complicated.

horse and carriage“We are going to have a photo shoot in front of your art car, and we are going to make $150,000 from it, and you can not mention on your Art Car’s web site that it is going to be at Burning Man from Aug 26-Sep 2, and you can not include a 12 second YouTube video of your art car at Burning Man”…wow. Just wow. It’s reverse patronage – the artists make the art and pay for it, and the Patrón collects all the cash. And then doesn’t even just starve the artist by collecting the cash – punishes them too. Makes it as hard as they can for the artist to sell their art anywhere else, to try to make a living from the tens of thousands of people who love enjoying their work for free at Burning Man after they had to raise money themselves just to get it there and take it away. BMOrg: “You can’t claim that you painted this painting at my house. It’s my house and I make the rules!” – Burner Artist “but you just made $150,000 selling photos of people at your house in front of my painting. Can’t I even show people a photo of my painting?” 

Some people were amazed to learn that they couldn’t use photos of their camp for camp fundraisers, or couldn’t have any other references to Burning Man. Others were amazed that this was even an issue, saying “so what? These are the rules, why can’t you obey them”?

In the last week, a recent case has been brought to my attention. This case clearly shows the way BMOrg enforces these policies – robotic, like Nazis. “you’re breaking our rules, take it down”. It also highlights how arbitrary this process is – as I will show you, in trying to protect a trademark for an arts festival, and their right to monetize all images, they arrogantly assume that they own “anything” that remotely looks like “their” festival, wherever in the world it happens. What are the trademark looks of their festival? It’s a statue of a man on some kind of base, and some street signs. Other than that, it’s the stuff that we bring and display that creates the “Burning Man look”. This story is a classic case study of the unfairness of Burning Man’s approach to this issue – do they really feel that their income stream is threatened? Sadly, this is a case where there really seems to be no reason – other than “we make the rules and we tell you what to do”. If there is a reason, the overwhelming amount of good they are rejecting by judging generous behavior to be “bad” because of rules being interpreted in word and not spirit – is a crying shame. “Throwing the baby out with the bathwater”. This tale shows how the organizational structure that is at the top of this pyramid, has changed from “hey, we’ll give you guys a sandpit, you bring your toys, and let others play with them too, everyone will want to play in the sandpit because it has the best toys and people share them”… to “if you ever brought your toy to the sandpit, that’s ours forever and we’ll make as much money from it as we want, and we’ll try to stop you playing with your toys outside the sandpit”.

Welcome to the Unfortunately Not Curious Case of the Fish Tank.

fish tank bike

A motorcycle at Burning Man? That’s against the rules! Oh, you didn’t get the memo? It’s called the Constitution of the United States of America, you should read it. Burning Man does not own United States Government parks. The Bureau of Land Management looks after 264 million acres of them. Can you park your art car amongst those acres, without having to pay a fee to Burning Man? Of course. Land of the free, home of the brave! Take a gun, there might be bears. What about on the national day of independence? Surely you have to pay a fee to Burning Man then? You’re on Federal land, with a vehicle that you once took to Burning Man! Again, no. It’s a free country, which means you don’t have to give money to Burning Man for things that have nothing to do with Burning Man… photo by Burnersxxx copyright(c) Burners.Me 2012 All Rights Reserved. This photo may be used by anyone for any reason including to make money; except for Black Rock City LLC or any of their agents or to make money for the Burning Man organization or any of its subsidiaries at any time for any purpose, whether commerical, personal, or charitable.

I first met the Fish Tank at 2010’s Burning Man, Metropolis. It liked to park outside my RV with its killer sound system blasting away while the operators took a day time nap. I loved it! And we were at 10 & J, so about as far away from disturbing the neighbors as you can get and still be in Black Rock City. I was camped with Villains and Vixens who joined the larger umbrella of Overkill. This was the first time I had been in an organized camp – organized in the sense that there were wristbands for meals served twice a day, a chef cooking for 100 people, a sound system inside a 100-foot authentic Mongolian yurt, camp workers in hexayurts, high rollers in Mega-RVs, hot masseuses on staff, live improv shows every night. That’s right, the kind of camp that haters like to hate – the dreaded “plug and play camping”. You know, as in “I got a low income ticket and I rode around on art cars for free all week. I didn’t buy one drink, people kept handing me them for free. Oh, but I hate those people in RVs, they just stay in them the whole time and never contribute anything to the party, they’re not real Burners”. A common attitude amongst the Burnier-than-thous, which completely misses the point that no people on low income tickets are bringing art cars to Burning Man or putting down their credit card for an open bar for 70,000 people. And we know the guys at the gate collecting $25 million+ aren’t either.

limo 2005Radical self-reliance, or Safety Third?

The stated reason for Burnier-than-thous to be against Plug-n-Play camping is it’s not radically self reliant. But if you’re standing in line waiting for your chance at a stinky portapotty, and watching gorgeous supermodels going in and out of a rockstar bus with air conditioned marble bathrooms…is there maybe a teensy weensy bit of jealousy that could be the real factor? No? You’re just a hater, and it’s them that’s in the wrong? They are so radically self-reliant that if they need the bathroom or a shower they can have one, and you are so reliant on The Man that you have to stand in line for a stinky portapotty that you hope’s gonna have some paper in it. It’s easy to hate the guy driving past you in the Lamborghini, until you are that guy.

Let’s say that you think there’s some potential danger involved in the 16-hour plus trek back through Exodus, Reno, the mountain passes and the congested freeways of San Francisco at the end of Labor Day weekend. There are 30,000 vehicles taking pretty much the same trip at the same time, and many most are being driven by people who’ve been partying their ass off for a week in an environment where whatever you want will manifest and it’s free, and sleep is difficult due to noise, heat, dust, or FOMO. So let’s say you want to do the sensible thing – get someone to be the designated driver. Well that sucks at Burning Man, not everyone is going to put their hand up and volunteer to be that – especially if it’s not their RV.

So, deals get cut, people get paid, maybe they get a ticket and a place to stay, maybe someone kicks in for their camp dues. Which in most cases, are splitting the expenses of the camp amongst the people who camp there, not lining peoples’ pockets. And someone is hired as the driver. That person looks after the RV, keeps it tidy, keeps strays out, meets with the honey wagon and the water truck if they can flag them down.

To me, this is not only reasonable, it is sensible. If you could afford it, you’d be crazy not to do it. Lives are on the line, and the danger factor is massively amplified compared to normal driving. The statistics support this. To many Burners though, what I have just described is anathema. The worst evil in Burning Man. Rich people in RVs with camps with staff. How dare someone pay someone to go to Burning Man! Burning Man is about Decommodification and Gifting!

What about the sparkle pony who gets a free ticket, a place to stay in the RV, even a flight out there? What does she have to do to the RV owner before she is considered a whore? Sexual acts? Nudity? Just accepting the gift?

red white and blue bicycle carWhere do you draw the line? This is a question we keep asking on this blog, and we try to highlight where lines are being drawn by BMOrg that are not fair, and detrimental to the event. And not just BMOrg, certain factions in the Burner community too. Often though, the Burners who are “line drawers” or “Burnier-than-thous” parroting the company line, are not independent spokespeople but part of factions or groups within the bigger group. BMOrg, the Theme setter, the Petri Dish controller. Memes are spread through tribes and then get accepted as unassailable truths. The Org is so vast and nebulous with its volunteers and friends and contractors, it’s become harder to tell anymore who’s a “BMOrg Burner” (aka Kool-Aid drinker) and who’s a civilian with no dog in the fight  – other than to just enjoy the party. Many of the people critical to our posts on this blog have later come out to admit they work for the BMOrg. Fair enough, we welcome criticism, and if we dish it out we need to be able to take it. We enjoy the party, but we’re not there now, so this is a more appropriate time for criticism. We call them out when they deserve it.

The idea of “don’t use the words Burning Man” and “don’t use photos of your camp” for camp fundraisers, was just so extreme for me that I believe it is a line drawn that BMOrg needs to retreat back behind. Or, just loosen the reins a bit. What is it they’re afraid of?

As far as I can deduct, BMOrg’s primary concern driving this is that others will be misrepresenting the values of their brand “Burning Man”, and that this will therefore lower the value of the brand – by reducing the maximum amount of money they can get licensing it. They make royalties from people selling movies about Burning Man. They charge $150,000 to magazines to print photos of the event. Who the photographers are, and who they work for, is not really relevant. There are many professional photographers at Burning Man, there are many amateurs too. In writing this blog, I very frequently go to and type “Burning Man”. There’s a lot of them. In fact, Burning Man is such a visually wonderful interactive spectacle, that I would be surprised if there are many people who went there and didn’t take at least one photo. Especially now that pretty much any mobile phone is a camera, not even smartphones.

BMOrg’s stated reason for having to own every photo, video, and other type of recording ever taken at their event, is so that they can protect the privacy of participants. Which they don’t seem to be all that effective at, given how many images are floating around the Internet for free, often containing partial or full nudity.

ecossytem darwinAnother reason, which seems more likely given the way this organization operates, is that they want to own as much of the IP of the event as they can, so that only they can make money from it. This “no-one can profit from Burning Man but us” idea is wrapped in ideology and the (Cargo) Cult-ish 10 Principles. The shrink-wrapped packaging seduces you that this is a party where everything is free, it’s not about money. It’s about being yourself, expressing and sharing yourself, giving to others. In reality though, their IP ownership policy has more in common with Citizen Kane or how Rupert Murdoch has run his business for the last 60 years. It’s the Mickey Mouse model – as in this is what Disney, a massive owner of content, does. We own the content, only we make money licensing the content, if you use the content and try to make money from it that’s piracy and we’ll sue.

Hollywood has spawned a whole industry, a whole economy. Hollywood is an ecosystem, with a symbiotic relationship between all the participants. When Hollywood is winning, all the people working in Hollywood are winning. More interesting projects, more jobs, more opportunities, more people. It’s a good example because we can also see how when Hollywood is hurting, that hurts many of the people in it too. We saw this in 2008 with the 3-month long Screenwriter’s strike. You’d think that there are so many scripts sitting in filing cabinets in Hollywood that they could punch them out for years without ever hiring another writer again, but no, this was a major disruption to the industry. Actors seemed to be the ones hurt most, and people who made their living renting equipment to the different productions. The catering companies. The people owning the studios, they were all fine; but the broader ecosystem was doing it tough.

Burning Man is like a backwards Hollywood. Flip the model on its ass. All the theme camps, all the art cars, all the actors, all the costumes – that all belongs to one pyramid-shaped entity. Not the one who paid for it. The one that you paid. The Man that you worship. You paid them for the privilege of owning whatever spectacle you chose to create for them. Who’s them? BMOrg. In Hollywood, an actor can come from nothing, achieve rapid success, and then reach the ladder down to where they came from to elevate others. Like Mark Wahlberg’s tale in Entourage, David Bowie playing Andy Warhol in the true life tale of Jean-Michel Basquiat, or Good Will Hunting wunder-kid Ben Affleck who is now a Director and chooses actors to get jobs in his movies.

In Burning Man’s view of how this economy should work, we Burners pay BMOrg’s salaries and expenses, and we pay them a profit to put in their pockets every year, and in addition we pay all our own expenses, we pay to create the art, we bring large amounts of supplies and give them away for free, they own it all, and if we ever want to use photos or the name of the party we created, we better stop. That’s theirs.

Fallen Angel, Basquiat 1981

Fallen Angel, Basquiat 1981

fishtank2In Burning Man, you bring the best costume? BMOrg will put it in photo shoots and make money. Bring a cool art car? BMOrg will put it in photo shoots and make money. Put the same photo on your web site where you try to raise funds to support the art car? BMOrg will send you cease-and-desist letters, escalating in tone, until they’re ready to sue and take even more of your money.

Think I’m over-stating it? I’m understating it. And when I say “make money from photo shoots”, each single one is worth hundreds of thousands of dollars.

Recently we discussed their IP policies in the context of theme camps: Do Not Use the Words Burning Man. The policy applies beyond camp placement, anyone who buys a ticket is assumed by their legal department to have consented to it. So this is really about anyone using any photos from Burning Man in any way that is not clearly “personal use” (or “fair use”).

An art car is sometimes built and owned by one person. Just like an art project. Usually though, it’s a team effort. And this is one of the great things about Burning Man. In Whatsblem’s recent interview with Caveat Magister, they talk about the way the LA Burner orientation is to build a garden together. They get it – bringing us together in a [free|space] of fun and play, is why we all go to this party. Likewise, usually it is a team effort to put a camp together. For larger camps, someone has to pay to rent the generators, or the port-a-potty, or buy the supplies. Usually a few people chip in, or maybe everyone in the camp pays a fixed fee to cover the budget. A large camp budget is hundreds of thousands of dollars – a major camp on Esplanade, maybe $350,000. I would name them but I wouldn’t want to Dis them…those are some of my peeps…

How big is a large camp? 50+? 100+? The camp I was in last year had about 260 people. 70% virgins. I won’t be doing that again. This year I have 20 close friends who all want to camp together, with a varying amount we can afford to spend per day. We all understand to stay somewhere costs money every day. And we want some luxuries, and luxuries cost extra. Some in the camp can afford more than others. Everyone has to chip money in, including some people we’ve never met, friends of friends. We have people coming from more than 10 countries, and even from the US everyone is coming from totally different places with totally different logistical issues.

We need systems to communicate with each other. Packing lists. A location. Walkie-talkies, GPS. Bikes. Sound system, booze. Barbecue, ways to cook. Water, tons of it. We use the Internet to co-ordinate, the latest technologies. Those of the camp with experience, share theirs with the rest of our friends on our facebook group.

But sooner or later, inevitably, money has to be spent for the camp. And money has to be collected for the camp.

And here’s where the complications begin. Money means spending. Spending means credit cards. Credit cards require bank accounts.

fish tank nightDo you pick one person, to be “the Bank” like when we played Monopoly as kids – everyone gives all the money to them, everyone trusts them to do the right thing, and everything goes through their personal account?
What about for an art car, where multiple people maybe from different States might be driving it, multiple people have kicked money into it and feel like part-owners. Who’s going to get the insurance policy? Who’s it going to be registered with at the DMV (the real one, if it’s street legal)?

What if it’s in the Macy’s parade in New York and Macy’s wants to take a photo of it? Who owns the rights? The person who drove it to New York, the person who built it, Macy’s? Macy’s wants to know. Lawyers get consulted.

This problem, of how more than one person can own a thing, was solved about a thousand years ago. The invention was called a Corporation. Corporations have come so far, that they are now recognized as persons by the Courts. Although they have special rights that make them even more powerful than persons, due to the fact that they’re not acutally a person. For example, you can’t jail a corporation. And theoretically it can live forever.

So many artists and camps use this simple and widely accepted technique, common in the world of business and insurance and bank accounts, to manage the annual expenses involved with attending this event. What name is the bank account in? Do we have a Paypal account? How do we get the funds from Kickstarter or Indiegogo – or Art Grants? Shall we get a Square so we can take credit cards at our fundraiser? All of this is made quite simple by having an LLC (which means Limited Liability Corporation). It provides a legal structure so that if I kicked in $5000 for a sound system on an art car, and then someone else was driving the art car and someone jumped off it and hurt themselves, that person wouldn’t be able to come directly at me for being responsible. I just kicked some money into the company for the sound system. The company can have insurance to protect everyone.

no team in fuck youShouldn’t these companies be non-profits, if they want to go to Burning Man? Isn’t an LLC something that’s for profit? Well, technically yes. But you need to understand that things aren’t as simple as that in this country. You can’t just decide to start a company and decide to call it a non-profit so that you never have to pay tax. That’s not how the IRS works. You’ve got to apply to them for permission. In the last couple of years we started and went through this process – it took 18 months, a lot of paperwork, and the pro bono contributions of a pretty big law firm. And this is for a legitimate charity, nothing to do with Burning Man, a philanthropic start-up.

It’s not practical to go through this process just so that you can get insurance and raise funds on an art car. And even if you did, it’s highly doubtful the IRS is going to just rubber stamp approve it. “Oh, you have an art car? OK, you never have to pay tax again then”. Having said that, I’m aware of a number of theme camps or art projects that do have a registered 501(c)3 charity – this year’s Control Tower springs immediately to mind.

Control Tower is a sponsored project of Fractured Atlas, a non-profit arts service organization. Contributions for the purposes of Control Tower must be made payable to Fractured Atlas and are tax-deductible to the extent permitted by law.

What is it?

Control Tower is a large scale interactive artwork at Burning Man 2013. It is a complex, challenging and experimental artwork that embodies the ongoing mission of the International Arts Megacrew – to create & support big, collaborative art projects that promote the creative development & self expression of people from all walks of life.

Control Tower will be a 60′ tall interactive platform to which we invite any and all artists to contribute. Every aspect of the tower will be interactive, from the never before seen experimental flame effects, to the massive & dazzling array of RGB lasers, to the shifting patterns that play across the entire surface of the artwork.

Just because something is a corporation, does not mean it’s trying to make money. Corporations can be holding structures, ownership structures, insurable entities. Just because the structure of a corporation is not that of a tax-exempt non-profit, does not automatically mean that it is trying to profit.

Which brings us to . A company founded by Burner Dr Andy from New Jersey, a highly respected orthopedic surgeon who in his spare time teaches at the world’s top medical colleges, and help kids in the developing world, low income kids, and kids with special needs. In the US he puts hours every week into doing this. Andy is a Merry Prankster from the old school, he loves Burning Man, he loves fun, he designed his art cars to be very open and accessible. He completely gets the true spirit of Burning Man, openness and inclusion and gifting. Everyone involved in Fish Tank go out of their way to respect Burning Man’s rules. If you see Fish Tank on the Playa, hop on for a ride, or dance away next to us! Just don’t jump off.

This company was not founded on a grand vision of taking over the world with half-tank, half-fish mobile sound systems. It was founded on a much more practical basis: the need to manage the logistics and expenses of moving these art cars around the country to various events, one of which is Burning Man.

interviews juplaya“Wait a minute – did he just say various events?” – yup. That’s right, although this might be hard to believe for some Burgins, Burning Man did not invent art cars, and is not the only place you can see them. Like mega-art car Robot Heart, Fish Tank has operations on both coasts. And between the two vehicles, Angler Fish and Fighting Fish, they have been to:

– Electric Daisy Carnival (Las Vegas)

– Free Form Festival (New Jersey)

– Art Basel (Miami)

– Houston Art Car Parade

– Hot August Nights (Reno)

– Halloween Parade (New York)

– BUKU (New Orleans)

Some people at these events recognize the Fish Tank from Burning Man. But the vast majority have no idea what Burning Man is, even in the art car world. I would challenge you to name any other Art Car you’ve seen at Burning Man, that has been to more events outside the Playa than the Fish Tanks. It’s not easy to get to these things from Point A to Point B, it’s expensive, it’s not profitable. $3/mile minimum. Without patronage it would not happen. The more art cars go to events away from Burning Man, the more people want to go to Burning Man to see all the art cars.

Wherever Fish Tank goes, it draws a crowd. This is in Reno, most of these kids knew about Burning Man but almost none had been. They didn’t realize there was so much stuff like this there:

fish tank vogueIn fact, people love the Fish Tank so much, that when Vogue magazine wanted to do a story about Burning Man, out of all the 500+ art cars available, they wanted to feature the Fish Tank. Which of course the friendly and accomodating owners of Fish Tank helped them out with. “Sure, we’ll stay here and not do anything else until your photographers are finished. Sure, I’ll move from my seat so I’m not blocking your shot. Sure, I’ll get off my own art car so that you can take it over and pose on it”. It’s a party, it’s a city, we’re gifting, whatever we can do to help out Black Rock City, we do.

In the past, Fish Tank has been asked to provide a “taxi service” for everyone from BMOrg to DPW to Alex Grey, helping people get across the Playa. It has transported the sick and wounded to the Medical Center, on many occasions. With the added bonus that the owner is a highly skilled surgeon, who I’ve seen provide plenty of free medical assistance at the party. If you’re a doctor, you swear to the Hippocratic Oath, which says if you see someone who needs your help, you help them. You don’t swear to the oath that says “if someone is sick in front of me, I will only let  the official Burning Man medical team help them”. It doesn’t work like that. Someone’s injured, you help them immediately, you radio for assistance, someone comes out on a quad bike, it’s often easier for the art car to take them over to the Medical Center than the quad bike. Or, someone passes out on the art car, you check their breathing and heartbeat, you take them to the medical center. You maybe even stay there with them for a bit to make sure they’re OK. This type of help doesn’t just get provided on the odd occasion by Fish Tank. It’s part of what Fish Tank is all about – leading by example, and representing a higher standard of civil behavior towards one another. Helping, caring, sharing, giving. Keep it nice and keep it happy, don’t rock the boat, don’t make waves, don’t piss people off. Calm, mellow, happy. Just create smiles – miles and miles of smiles.

Every year, the Fish Tank does an “art tour” of the Playa for mobility challenged or other special needs Burners. BMOrg themselves don’t put on anything like this to make the Burn easier for these people. Without Fish Tank doing this, they’d get nothing. They’d be lucky if they got approved to get a Segway or a golf cart.

So what does Fish Tank get, in return for both everything they’ve given at Burning Man, and for promoting the art cars of Burning Man to literally millions of people around the country? Without ever directly promoting Burning Man, without even using the words Burning Man – they don’t need to, they’re bigger than Burning Man. Burning Man is just one of the ponds that these Fish Tanks go to swim in. It’s the one with the most rules and restrictions, but they go out of their way to obey and respect them.

What do they get?

Well, they certainly didn’t get any money from Vogue. The $150,000 for the photo shoot went straight into the coffers of BMOrg (minus, we hope, the 3% cut the BLM takes of any money anyone makes on the Playa).

bmir containerAnd, they didn’t get much support from Burning Man’s on site operations crew, the Department of Public Works. Last year Fish Tank couldn’t trade an entire keg of beer for the right to use their on-Playa fuel station. Only “special” art cars that had been given the secret handshake could do that. Later we found out that a keg is a miniscule, insignificant quantity of beer compared to the amount that camps like Distrikt were gifting them. But should they really have to beg? Fish Tank brought hundreds of gallons of extra fuel, and churned through a lot of it when they helped out the handicapped, and emergency situations with injured Burners. Who decides what’s fair, and what’s just plain mean? Shouldn’t Fish Tank at least get a gas top-up after that ride? It’s not like they’re trying to steal gas for free, they’d be happy to pay.

Nope, basically all they get is one big slap in the face. A “fuck you very much”. From DPW, from the BMOrg, from the Haters and the Enforcers and the Bullies.

Let’s start with the letter:

From: Nathan Aaron Heller 
To: “” 
Sent: Tuesday, June 18, 2013 8:59 PM
Subject: Use of Images Obtained at Burning Man

Greetings to you at Fishtank LLC,

My name is Nathan Heller, and I am from Burning Man’s Intellectual Property Team.

I hope this email finds you very well.

sword girlsIt appears you have been to the Burning Man event, and therefore you may know we take two principles very seriously: Decommodification and Gifting. We do not allow commercial use of images obtained at the Burning Man event without our prior permission. 

It was recently brought to our attention that your website is using images obtained at the Burning Man event. 

We really appreciate your efforts in reaching out to and informing the broader Burning Man community about your amazing art cars and your services, but we must ask that you please make the following changes at your soonest convenience:

We see images obtained at the Burning Man event are included on these pages of your website:

We also see a video with footage obtained at the Burning Man event is included on this page of your website:

Perhaps you are unaware, non-personal use of images and video obtained at the Burning Man event is prohibited without prior written permission from the Burning Man Organization. We define “non-personal” as beyond friends and family. Guided by protecting the principles of Decommodification and Gifting, we also prohibit third party commercial use of images and video obtained at the event without our prior written permission, and we cannot permit these uses. This information is found in the Terms and Conditions for entry into Burning Man, on the back of the Burning Man ticket, in the Survival Guide mailed to all participants, and on our website. You can read the Terms and Conditions here:

We really appreciate your art and year-round outreach to the broader community, but we must ask that you please remove all uses of images and video obtained at the Burning Man event from your website, and please notify me once you have made the changes.

Please let me know if you have any questions, and I look forward to hearing from you at your soonest convenience.

You can read more on Burning Man’s approach to intellectual property here:

Best Regards,



Nathan Heller
Burning Man Intellectual Property Team

neverwashaul“Brought to our attention” – ie some burnier-than-thou thought that snitching makes the world a better place. “Dear Burning Man. I would like to bring to your attention, that this art car says it is going to be at Burning Man. AND, they have a 12-second YouTube video at their site that appears to be from Burning Man. Yours truly, Anonymous”. ALERT ALERT! MAYDAY! Call in the SWAT team!

What’s the issue? Well, Fishtank, LLC has had money contributed to it by a number of people over the years. They formed an LLC to better keep track of the various contributions, which are in the tens of thousands from multiple people. It needs annual maintenance and the logistical expense of moving an art car like this around the country is quite high. They can keep finding more backers to gift money in, or the existing owners have to keep pouring money into it. It’s kind of like a boat, in this regard. Once you get it, you have to keep spending money on it whether you use it or not, and the more you use it, the more money you need to spend on it.

In the world of boats, most familiar to the people involved with FishTank, a standard model for this is Chartering. Which the Fish Tank does not do. We know of other Art Cars which are available for rent at certain events, such as the Lady Bugs from Brooklyn. But that doesn’t work, the FishTank is for fun, the owners want to be with it when it’s at all these events. The people who might want to rent it for Burning Man, are probably already on it and putting money into its expenses and upgrades.

What about selling tickets? That is completely against the open nature and design of the Fish Tank.  And against the Burner principles of Radical Inclusion and Decommodification. What about something like Tiki Island did – for a certain level of Kickstarter funding, you get seats for 2 people on an evening cruise. It’s possible, but just another form of ticket selling – and borderline a commercial use of the vehicle on the Playa.

So you’re left with fundraiser events and Kickstarter. And you can’t use any photos of the art car at Burning Man in any of them. No matter who took them. If there’s video of your art car on YouTube that someone else took, you can’t embed that in your site. Maybe, you can’t even link to it. People just have to take your word for it that the Art Car has been to TTITD.

Fish Tank wanted to be a bit different. If a corporate wants to use it for a big event or a photo shoot off Playa, they can book the whole thing to be at the event. It’s not like renting a car – this is a mobile art installation that has to be shipped cross-country, driven correctly, and maintained in a state of operation. If you’ve got the money, you can rent the Fish Tank, they’ll get it to you and drive you around. The ultimate limo.

But it’s not like they can do 3 of these events a week. Given the logistics, at best they would probably only get a few events per year. Which would pay for themselves and promote the Fish Tank further, but would also cause wear and tear on the vehicles and probably not leave them with enough profit to cover the storage cost and profit-forbidden Burning Man sharing.

fish tank girlWhich left them with one other idea. They wanted to sell their own line of merchandise. This would be something they could do at any event they went to (except Burning Man). Often, after the parade is over, the Fish Tank stops, but people still mill around. Why not sell them a T-Shirt, or some quick-dry swim trunks?

None of these t-shirts mention Burning Man. None of these t-shirts have photos taken at Burning Man. They don’t even have a photo of the Fish Tank. So, how is it that Burning Man is being exploited by Fish Tank? How is Fish Tank hurting Burning Man, and what is the economic impact of that hurt? Anyone can go to YouTube and type “burning man fish tank” and see a hundred videos…but put a single one of those videos on your page, all of a sudden you’re attacking Gifting and Commodification, you’re exploiting Burning Man for your greedy personal commercial gain. YouTube, who sells ads while we’re watching videos, would seem to be the one who is actually doing this, actually making the money.

What did the Fish Tank do that was so bad in the eyes of Burning Man that they wanted to send their legal department on the offensive?

Well, let’s take a look. I will use screenshots because they may well change their web site to comply with Burning Man.



July 20-22,  Reno Art Car Fest ~ 
Friday evening = Party at Harrod’s Mutant Rides exhibit at the Auto Museum.
Saturday = exhibiting at the Nevada Museum of Art and a party that night at the Art Museum with DJ Spooky.
Sunday some of the cars will drive into the mountains to a great campsite for swimming and partying and for those that want to stay, camping.

August 26- Sept 2, Burning Man ~ Returns Home for a week on the Playa during the annual Burning Man festival where over 50,000 people are invited to ride the Fish! Black Rock City, NV
Bad, huh? They used the words Burning Man. They even said the dates that the party takes place, and that they would be there. I can see Larry’s millions melting away before my very eyes. Oh, the anti-Decommodification! To say the name of the event, and when it takes place! Outrageous! And then to offer free rides to people? How dare they!
But wait a minute. Didn’t Burning Man just say they’re being reasonable about how you use the words Burning Man?
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.
Reasonable enough, right? But irrelevant. Fishtank is not using the words Burning Man to promote a fundraiser, or an event that could be mistaken for some kind of association with Burning Man. It is using the words Burning Man to promote Burning Man! It is clearly saying that they will be at two upcoming festivals, one in Reno, and one Burning Man. They don’t claim to own Burning Man. No-one could possibly be confused about what this page says. The use of the words Burning Man is in the context of describing Burning Man. And, PS, they’re offering to gift rides for free to every single person who goes to that party. What’s in it for them? How is Fish Tank making money from this?
There’s got to be more to it than that. Well, not really. Let’s go to the next violations Nathan has pointed out:
fish tank edcLook familiar? Maybe, because you’re seen the Angler Fish Fish Tank at Burning Man. And you’ve seen Rob Buchholtz’s sculpture Wish, the high tech flower trees at  Burning Man. But this photo was taken at Electric Daisy Carnival in Las Vegas. If an art piece was displayed at Burning Man once, does Burning Man deserve to get money any time that art piece is used away from Burning Man? Does Burning Man own any rights to photographs of things taken outside of Burning Man, if they were once at Burning Man?
Absolutely not. I would hope, not even for Honorarium Grant recipients – although I have to say, if it turned out that in order to get the grant you had to sign an even more onerous contract transferring the ownership of your art to Burning Man, it would not surprise me.
If you look at the photo above, it’s pretty easy to tell it’s not Burning Man. What are all those people doing wearing normal clothes? What are all the market stall tents in the background? You would think that in the circumstances (those being, not actually looking at the photo you are saying is a problem) BMOrg would open with the benefit of the doubt – “hey, we were wondering, are these photos from Burning Man, or something else”? But no, we don’t get reasonable doubt here. We don’t get innocent until proven guilty. We get “assume we’re in the right and you’re in the wrong because we’re BMOrg”.
Seriously. The guy didn’t even look at the photo. Look at it yourself and it’s clear.
Now, if these people were being disrespectful to Burning Man’s ownership policies, there would be photos all over this site of Fish Tank at Burning Man. There are none. Why is that? Surely that is because they are complying, not violating. But BMOrg doesn’t give them credit for this. It’s all or nothing – we’ll punish you for the 1%, not thank you for the 99%. No exceptions – except for the exceptions. Like, the Temple builder David Best. Nothing against David, I appreciate his art. But he was selling dinner with him at Burning Man for $1000 a pop. He certainly uses the words Burning Man to promote his career as a commercial artist, it would be hard for any major Burning Man artist not to. They should be able to.
Look at this a different way. What makes you think this photo is anything to do with Burning Man? It’s the art car, right?
4th of JuplayaWe wrote about taking the Fish Tank to the Playa last July in this article: Shhhh…don’t mention Juplaya. I didn’t just write the article, I wrote the check to the logistics guys and bought the fuel. That stuff ain’t cheap…but it sure is fun. Guess what: if you go to the Black Rock Desert at other times of the year than Burning Man, it also can get dusty. And if you bring an Art Car with you , it might look like Burning Man. Especially if it’s a famous art car associated with Burning Man from Vogue magazine. But that doesn’t mean Burning Man owns it. Their permit for the commercial rights to the Playa is only for a small period of the year, anyone can show up at any time the rest of the year with art installations, art cars, theme camps, and take all the photos they want of it. They don’t even have to give BLM a cut, if it’s not an organized event.
So, what else? Well, this next one Fishtankllc is not disputing. Sure, they can take it down from their site – in fact I just checked, they already have. They can’t take it down from YouTube, it’s not theirs. The video belongs to whoever posted it, according to YouTube (part of Google). But is this really hurting Burning  Man?
Burning Man is going to make at least $25 million at the gate this year. This 12 second video – which really is illustrating the capacity of this art car to transport multiple people at any type of event – says nothing about Burning Man, doesn’t link the Fish Tank to Burning Man, and is clearly not confusing to anyone interested in the trademark “BURNING MAN” for Arts Festivals featuring some music. FishtankLLC are not throwing any such events.
Fish Tank took the link to this video down, but it is still there. On YouTube. Along with thousands of others. And, guess what? YOUTUBE IS MAKING MONEY OFF THEM. Here’s the most popular video, at 4.3 million views since last year someone is cashing in big time on all the hoop-la:
What is the problem Burning Man? Why is it OK for Google (which owns YouTube) to make tons of money out of Burning Man videos, and not OK for Fish Tank to link to 12 seconds of video hosted at that site, that doesn’t contain advertising of any sort, and really does not say anything or confuse anyone about Burning Man? They’re not showing the Man, they’re not showing any significant art work, they’re showing the Art Car they made and paid to take to your party and drive your guests around in.
Is it because you like to pick on the weak, but are afraid to pick on the real violators of your policies because that might be a tougher fight?
The more they force themselves out of the fund-raising process of the tribes, the more they will make themselves irrelevant to Burner culture. Embrace and extend, or resist and #fail.
I’m sad to say, I suspect there is some link between my past contributions to the expenses of this particular art car, their generosity in inviting me to off-Playa events with them that I covered on this blog, my recent post critical of the BMOrg’s IP policies…and this out of the blue attack from BMOrg accusing them of not understanding Gifting or Decommodification. Outrageous and unjustified charges, all Fish Tank can do is comply, there is no Ombudsman, no process of arbitration, no appeal. What’s fair, and what’s just, that never comes into the equation. It’s unfair and unjust for BMOrg to attack Fish Tank for using photos that have nothing to do with Burning Man. It’s unfair and unjust that Vogue does a photo shoot at Burning Man and features the vehicle, and Burning Man gets paid $150,000 by Vogue for photo shoots on the Playa, while the Fish Tank can’t even get a gas refill after driving handicapped kids around all day. But the greatest injustice of all, is that after everything Fish Tank has ever done for Burning Man, all it takes to incur the wrath of the BMOrg and being immediately accused of “being ignorant of and violating 2 of the sacred 10 principles” by the paid IP enforcer goons of the BMOrg…is linking to a 12 second YouTube video and providing the name and dates of the party.
If you don’t draw the line at this, then there is no line any more. Justice is over, tyranny has begun, we all mean nothing and must obey at all costs. “No spectators! You must participate so that we can monetize your radical self-expression! Content is king, the more unique the content you create for us at your expense and gift to our commercial organization to license it, the more we will be king! Do not use videos of Burning Man, unless you’re Google, then please make all the money you can from them so you can buy us!”

40 comments on “The Fishy Smell of Corporate Excess

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  4. Funny thing, the fishtank should’ve ignored the letter. They were totally in compliance, and the BMllc goons had it wrong. If the goons had tried a takedown under the communications act, they would’ve gone to prison for a felony for pretending to the court that they own something they do not.

    Linking to other people’s content is currently legal, even if the content is illegal. This however might make a real interesting case to deprive link-providers of their immunity, since the act of linking might be considered in violation, since the content was not illegal. Pretty much I’m guessing that portion of the case would go to the deepest pockets if it went to court.

    Simply put, if the llc is going to act like this, then we ought to troll them, put their goons in prison, pre-register our trademarked and copyrighted IP (ie: not contractual de-owned honorarium grant stuff), and sue for triple statutory + actual damages.

    We can use the Vogue shoot for reference point in how much the IP would be worth. Since (it appears) the fishtank was in the Vogue shoot, this would’ve been a brilliant one to have fought out, since the actual value is so clear-cut.

    That money would’ve gone nicely into an artist/legal support foundation.

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  14. Got lost in your own verbiage, Tolstoy? Final line of third paragraph after the picture of the Lincoln town car limo with the sea horse head:

    “That person looks after the RV, keeps it tidy, keeps strays out…”

    y’all agreed to let them take pictures, & now you’re complaining after the fact? BC y’all aren’t getting some sort of special recognition or compensation from the Borg?

    unless you can prove that a $150,000 deal actually occurred, which would be a big deal, it’s just speculation & conjecture. Otherwise known as bullshit that you’re talking out of your ass.

    what you should taking away from this is that you’re coming off like a privileged, self entitled.

    • That’s a hypothetical scenario: “let’s say …” , not something that actually happened. However, it doesn’t change my point: let me flip it back at you, do you think “radical inclusion” means “anyone in Burning Man has the right to go into anyone’s RV or tent at any time”? No, it’s a city, you can’t just run around doing home invasions. But if you have a bar at your camp handing out free drinks, it’s safe to say that strays are welcome in your camp. When said stray wants to take a dump in your RV, and you say ‘sorry, no” – that’s not elitism. The people *staying* in my RV have to go to the portapotties if they want to take a dump, so why should I have to gift this privilege to strangers, just for the sake of “inclusion”?

      As for proof of the $150,000 deal, all we have is Burning Man CEO Marian Goodell talking about it in the SF Chronicle. That’s proof enough for me, I’m not calling her a liar – are you?

      I had nothing to do with any Vogue photo shoot, I just kicked a bit of money towards this art car, as I have done with other art projects and art cars. Sadly, it seems I shouldn’t promote the projects I support any more on this blog, since BMOrg appear to be vindictively targetting them.

      I think it’s wrong that Burning Man lets Google make money from their event, and anyone filming YouTube videos; but punishes anyone linking to those YouTube files, and tries to intimidate people who have photos on their site from events that have nothing to do with Burning Man.

      Attacking the artists, and making life hard for art cars and theme camps, might provide some sadistic satisfaction to BMOrg workers, but does not help the party in any way. I don’t think I’m alone in saying it’s hard for the community to figure out the logic behind many of these decisions, other than that it’s petty-power trips from those on the inside.

      BMOrg should help artists make money, and make life easy for art cars. Sure, if someone is blatantly violating their policies, write them a letter, in this case there was nothing of the sort. The site had clearly gone out of their way to be respectful to Burning Man’s rules and did not use any images from Burning Man. Not one! I don’t see how linking to a YouTube video that someone else posted is anything to do with them – if BMOrg has a problem they should be addressing it to YouTube/Google.

      • If y’all made the necessary arrangements, got to the fuel dump at your allocated time, but were still unable to gas up, why presume there’s some sort of acrimonious motivation underlying it? Maybe there was a scheduling snafu, or the replacement tanker was late.

        If the pictures were in compliance with the terms & conditions and the BORG came around giving you shit, tell them to go fuck themselves. Just take a line from B-Real:

        “If you don’t like it, here’s my dick bite it”

        Although you might want to lead with a letter explaining that the photos weren’t taken at Burning Man.

        Here’s the test then:
        Are the detrimental effects of the these practices outweighing your positive derivation & enjoyment of the event? If so, then fuck it. Go do something else. The BORG doesn’t owe you anything, other than a week long camping trip if you buy a ticket. A huge chunk of the true community had enough, and went on their merry way after last years (2012) shenanigans.

  15. Wow… What a well-written article. I can tell you are really “about the Burners”. I’m glad you wrote this. Very insightful and inspired. You can love Burning Man and still see the truth in the way it operates…. All of the LLC stuff, very smart. Also, I wish the Fishtank well. I hope to see you both on the Playa this year.

  16. Check your code – site is broken on Android mobile. Clicking the “read more” link takes me to a page with the header, name of the article, and comments. But I don’t see the article.

    • Android? Go to Google and type “Burning Man”, we’re not even above Dr Dre and we have 600+ original posts specifically on the topic. Google is broken for . Tell them to fix their crappy code first then I will think about complaining to WordPress about Android

  17. Holy Frijoles, that was waaay TL:DR!

    I got up to the point where you started bragging about being in a luxury turn-key camp that ejects people, or “strays” as you put it, from their camp and lost interest. But if I got the gist of your bitching & moaning, you’ve got some sand up your vagina because the BORG asked you to stop violating their intellectual property rights, and honor the contract you agreed to before entering the event. Is that about right? If there’s more to it, please put an executive summary at the top of this post.

    Don’t have much interest in complaints from those who imbibe to excess at the open bar to which they’ve contributed nothing, only to sequester themselves in a bottle service VIP section.

    • Executive summary:

      I’m really cool bc I stay w/ a very expensive, luxo turnkey camp which I use to get lots of pussy from supermodels, and enjoy kicking people out of. You are to infer from this that I am wealthy.

      There is a prominent Medical Doctor in our camp who bought an art car because he is very affluent. In order to protect this extensive affluence from potential liability, he established an business entity to maintain the art car (smart).

      I will complain for the next 5,000 words about how expensive art car upkeep is.

      I will now unconvincingly attempt to argue that said art car is actually a public service to the Burning Man community.

      On the art car website, which is used to generate revenue, images from the Burning Man event were posted in direct violation of the intellectual property terms & conditions all event participants agree to. So Burning Man asked us to take them down.


      THAT’S NOT FAIR!!!!!!!!!!!!!


      • I’ve read through it looking for the part about rejecting strays, and I can’t find it. Even if you’re reading that somehow into this post, that never happened. Ask some of the strays we took in if you like.
        Your hyper-real response makes me think you’re just a BMOrg troll. Did you actually read the post crybaby, or just look at the pictures? There were no images from the Burning Man event posted on the art car’s web site. There were images of the art car posted in Burning Man’s $150,000 Vogue money fest though.

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  24. That should read “grain of salt.” Incredulousness on an android does not the great American novel make.

  25. I don’t usually agree with you. In fact, if I was BMOrg I would ban you from the event, watch you have a tantrum, and laugh as I walked away. However, on this specific topic, I agree with you 100%. I don’t know if BMOrg’s actions had something to do with your post on their IP policy or not – you have a strong tendency towards paranoia and conspiracy theories so I’m taking that point with a grain of sale- but BMOrg’s actions are out of place either way. I don’t know any other event that doesn’t allow their participating artist to photograph and post their own art. For that matter, I don’t know any other event that tries to control what their paying public does with their photographs. Power corrupts and absolute power corrupts absolutely. I think the founders of BMOrg have become power hungry and money crazed. While it’s normal for corporations to use the work of the 99% to to make their profits and build their empires, the fact that BMOrg’s workers receive NOTHING IN RETURN just blows my mind. Without the artists, there would be no Burning Man. These workers are reasonably intelligent adults in the US, yet the child labor in India, China, Ethopia, etc, have enough sense to get paid. ~deep sigh~ Ah well, I must assume the artists are happy with the status quo – that they get the privilege of paying to camp in the desert and BMOrg gets the privilege of selling their hearts, their creativity, and their spirit – and when they stop being happy with the status quo, they’ll change it. It will only take one year of staying home to obtain full rights to your art. In the meantime, keep planting the seeds of revolution. Happy slaves are the worst kind.

    • thanks Cerene. The great thing about having an opinion you believe is right, is you don’t have to look for agreement or validation from strangers! ;-P lol seeds of ever-lution…it’s a grass roots movement
      I’m reminded of a time I thought I was staying in a $3500/night villa for free, but it turned out it was a construction site…it occurred to me that even homeless people don’t have to sleep in construction sites. I pity the fool! Which in that case was me. But not this case. In this case, the fool is WE.
      PS One of the more minor BMOrg founders did try to kick me out of the event last year. However it was already over by then. I left anyway.

    • No commercial use is standard for most recording formats at most events.

      “This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited.”

      Or maybe you’ve seen this on a DVD:

      “All material is protected by copyright laws of the United States and all countries throughout the world. All rights reserved. Any unauthorized exhibition, distribution, or copying of this film or any part thereof (including soundtrack) is an infringement of the relevant copyright and will subject the infringer to severe civil and criminal penalties.”

      i don’t know why people always seem to act like every time the ORG gets money it goes straight to one skeezy guy who goes on a 24 year meth and cockfighting binge while taking a bubble bath in Crystal.

      The monies are used to put on the event, fund art for the event, and contribute to philanthropic efforts in the community (so we can keep having the event there) and around the world. Let’s try to keep ticket prices down as much as possible, but 150,000 dollars is hardly anything in the economic scale of the event. It is not even 1% of ticket revenue for one year. If you had a problem not getting benefits for being in the photo shoot, i’m sure a hundred others would volunteer without expecting preferential treatment.

      If you can’t afford to bring your art car without following the rules, then you can afford to bring your art car.

      And finally, you could always just break the rules anyway. THAT would be some radical self expression. i sincerely doubt the ORG would try to sue you.

      This blog post is just radically whiny verbal diarrhea.

  26. I wonder what the Org would make of this:

    I came across it shortly after reading your post earlier today.

    My take; it’s great that the artists are getting paid to bring their art out to this event, and it should be OK for artists to use photos of their art at Burning Man on their own websites (not sure if the Org agrees entirely with these points.

    It starts to be a gray area when another event is hosting the photos. It’s reasonable for What the Festival to show photos of the art that will be at the event, and in some cases maybe the art has only ever been assembled previously on playa and no other photos are available.

    Having a photo gallery where almost half the photos are taken at Burning Man doesn’t seem quite right though. The Dinosaur Puppet photo is pretty inappropriate; that’s not just an illustration of the Dinosaur Puppet, it’s a photo of Burning Man (with Bliss Dance featured just as prominently as the dinosaur).

    Coupling the Burning Man-centric photo gallery with the text “the biggest names from Burning Man…” really seems like it’s crossed the line. The promoters are trying to portray their event as “Burning Man Oregon”.

    • And yes, I am one of your “line drawers”, I think What The Festival’s galley crosses the line one way, and BMorgs actions with the Fish Tank cross the line going the other way. There’s some nuance to the line for sure.

      I suppose I’m going to have to write a long reply now to explain why I’m not a “BMorg Burner”; not all of your critics have drunk the Kool-Aid.

  27. Great article, lots of good points, and the caption on the second photo was hilarious!

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