They Ride Roughshod

by Whatsblem the Pro

The principle of Decommodification that so many burners hold dear takes yet another brutal pounding this week as Australian chartbusting singer-songwriter-actress Missy Higgins releases her new music video. . . ‘We Ride,’ also known as the theme from the film Spark: A Burning Man Story. The single, along with the rest of the Spark soundtrack, is now available on iTunes.

The film, featuring footage shot at Burning Man 2011 – in other words, images of thousands of unconsenting, uncompensated burners and the art they built and transported to the Black Rock Desert at their own expense – would be forbidden by the Decommodification rule, if not for the fact that the people who forbid you from doing things like making commercial films at Burning Man happen to have a large financial stake in this one.

If you or I attempted to release a documentary shot at Burning Man, and followed it up with a soundtrack and a single by one of Australia’s top musical acts, the corporation that runs Burning Man would initiate legal proceedings against us in the name of protecting the culture from commercial exploitation. The fact that they have no problem with that kind of profiteering as long as they themselves have a financial stake in it and get a cut of the money should tell us something: that, once again, they’re not at all interested in protecting us or our culture, and care only about making money and protecting their monopoly on exploiting us and our creativity.

If the culture, the event, and burners as a group need to be protected from predators with commercial interests, then there should be no exceptions.

When challenged on what some consider their money-grubbing hypocrisy, the Org typically has one of two general responses, depending on the nature of the complaint: either they take the stance that Burning Man is a culture in an attempt to justify the exploitation of so many hard-working volunteers, uncompensated artists, and other unpaid participants, or they take the stance that Burning Man is a business entity in an attempt to justify their iron grip on the trademarks associated with it.

How long will we allow them to have their cake and eat it too? If Burning Man is a culture, then everyone who participates in and contributes to that culture should share ownership of the trademarks, and either be equally allowed to profit from them, or equally forbidden from doing so. . . no exceptions! If Burning Man is a business, on the other hand, then there shouldn’t be a single volunteer putting in a single minute of unpaid work on it. So which is it?

The film has already made over a quarter of a million dollars since it was released less than three months ago.

It may be worth noting while watching this film that the general consensus among old school burners seems to be that it sanitizes quite a lot of the dark side of Burning Man, and functions a little too heavy-handedly as pro-Org propaganda, and not an accurate reflection of reality.

What else should we have expected? Caveat emptor. . . and caveat possessorum, too.

[update from BurnersXXX] – note the “ignite.me” in the video credits, that seemed like an independent site to me at first, but now it appears to be yet another sales and propaganda channel for BMOrg. It was launched in December 2012 and the movie premiered at SXSW in Austin in March 2013…

58 comments on “They Ride Roughshod

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  8. Maybe it’s time for everyone to turn off the computer and spend some quiet time reading Adam Smith’s “The Wealth of Nations”. Despite the best efforts of utopians, capitalism happens.

  9. Dear “Don’t Pass the Buck”:

    The only posts I delete are the ones that contain personal attacks rather than attacks against an argument. I take special pleasure in doing this when the offending post comes from a throwaway account with a phony e-mail address (I got a bounce message when I tried yours).

    • But I believe this is your writing on this site, is that correct?; “A cunt’s a cunt, and this is one of the worst possible cunts I’ve ever come across in my life”

      • I wrote that, just like I wrote 6/7 of all the posts on this site. Whatsblem is talking about deleting comments from users, not suggesting he would delete entire posts from the editor. You will notice that he and I do not devolve into personal attacks and straw man arguments when trying to make our points.
        In the case of this particular story, http://burners.me/2013/11/15/killing-in-the-name-of-warning-super-gnarly-photos/ the woman is not making literary attacks in the world of Burner philosophy. She is not trying to defend the BMorg by calling us names. She is committing acts of violence and murder in the environmental domain, taking pleasure and joy in slaughtering endangered species. If anyone deserved to be called the C-word, and not in a good way, it’s her. And if she’s a reader of this blog, I don’t apologize because this is a justifiable cunting.

      • burnersxxx wrote “You will notice that he and I do not devolve into personal attacks”

        he also wrote “A cunt’s a cunt, and this is one of the worst possible cunts I’ve ever come across in my life”

        Nothing more to say…

      • So your argument, from behind an anonymizing throwaway account, is that the article I wrote should be dismissed because you don’t like the way someone else writes? I’d call that a pretty weak argument.

        It should also be noted that Burnersxxx is Australian, and doesn’t have the same aversion to the C-bomb that most Yanks share.

  10. So regardless of your feelings about Burning Man…putting that aside for a second, if that’s possible: you’re encouraging people to steal independently created film content. I encourage you to think about these points: I’m certain the film cost easily twice what it has made back yet. Documentaries almost never make money and are usually a labor of love. Great caution is taken by and imposed upon filmmakers to assure that anyone who is filmed onsite is a willing participant in said creation, and preventing film or photography at the event would be almost impossible anyway.

    God, you know, if there’s one thing I’m glad to get away from since I left it’s misguided Burner Fundamentalism. Here you justify stealing art from someone you perceive as profiting (even though I assure you they are not yet) because it should not have been made anyway because “DECOMMODIFICATION!” is black and white in your mind, so stealing becomes right.

    Don’t steal art. Don’t steal movies. On the playa or off, or whatever. That’s not “being the change,” or whatever and it’s not going to change Burning Man. It’s simply stealing.

    • You’re spouting absurd MPAA propaganda, and I know from experience that it doesn’t reflect the truth about filesharing; calling it theft doesn’t make it theft.

      The fact is, this film — not being a hugely-hyped big Hollywood production — is likely to make MORE money thanks to people sharing it on torrent sites than it is to make less money.

      Once upon a time, I had a golden opportunity to conduct polls on a large group (over 20,000 people) of expert file-sharers, in a closed and tight-knit community in which everyone was invited by someone else. One of the poll questions I asked this group — which consisted of people who know how and where to get virtually any movie or music release, free — was this: Do you still buy authorized copies of CDs and DVDs? Nearly 85% of them responded YES. Further polling revealed why: overwhelmingly, filesharers like to support artists who do good work. They also like owning the tangibles that come with authorized releases.

      Calling these people pirates and thieves is just empty bluster and offensive rhetoric in the service of an obsolete business model promoted by a gang of middlemen who add no value and create nothing.

      Here are some relevant links; please educate yourself before you start pointing fingers and calling people thieves:

      http://www.nytimes.com/2012/03/29/opinion/theft-law-in-the-21st-century.html?pagewanted=all&_r=0

      http://moreintelligentlife.com/story/internet-piracy-is-good-for-films-1

      “Case-in-point: in 2007 Radiohead made their album In Rainbows downloadable online for whatever price customers wanted to pay. Precise statistics are hard to come by, but one thing is clear: a lot of people paid a good amount of cash for the album. In fact, it was so successful that other acts have followed suit. Heck, even corporations like Panera have gotten into the act, setting up cafes in St. Louis and Chicago where customers pay what they can for certain menu items.”

      http://freakonomics.com/tag/pay-as-you-wish/

      All of this, of course, is on top of the fact that as burners, we’re all justified in not paying to see Spark: A Burning Man Story. . . especially those of us who appear in it, and those of us whose art appears in it, in spite of not having given consent.

      • Oh yes, I almost forgot: As I said, over 85% of the large group I polled said that they do spend money on authorized copies of media they know how to get for free. . . but what of the nearly 15% who said they don’t? We had a lot of in-depth forum conversations about that, revealing this about that 15%:

        Some were teenagers with little to no disposable income; they weren’t going to buy that movie they downloaded anyway.

        Some were people living in countries in which it just isn’t possible or practical to buy authorized copies of anything. I know that when I was living in China, it was pretty much impossible to even find a store that sold authorized copies of Hollywood movies. Maybe in Beijing or Shanghai, maybe, and probably in Hong Kong. . . but I didn’t live anywhere near those places.

        Some were simply too poor to afford such things, even if they were doing reasonably well in their local economies. When your cost-of-living is five or six U.S. dollars per day, an expenditure of $20 or more for a DVD is unthinkably extravagant.

        Your very biased view on filesharing (“it’s stealing!”) ignores all of this, and your slavish devotion to MPAA/RIAA business fables also represents an elitist world-view in which poor people worldwide are to be denied access to culture simply because they can’t afford it.

      • Disagree all you like; there are numerous real-world examples that prove that you (and the MPAA/RIAA) are wrong.

      • Here is some excellent commentary on the exchange we are having here:

        http://www.justburn.us/2013/11/a-response-to-so-called-burner.html

        Wow, commentary on our commentary!

        I would add to this that Actiongrl’s comment “I work in this industry” actually represents a reason to trust her opinion LESS, not more, as it means she has a strong bias on the topic of filesharing. I don’t have that kind of bias, and I’ve shared real-world examples and polling data that support my position, while Actiongrl has merely stated her entirely unsupported opinions.

  11. Whatsblem the Pro wrote, ‘No need to feel guilty about it.’ = you are advocating stealing other people’s work.

  12. I think y’all could apply some sunscreen, drink some water, and delete your lawyers off your speed dial. You don’t have to watch a movie, or listen to a song to live a good life. If you’re grumpy that someone is making money by exploiting your Burning Man experience, I have a whole big long list of people making a lot more money off you than they are. Relax, enjoy the ride… it’s pretty short after all.

      • I disagree, actually… having observed a substantial portion of BM’s evolution. I can say that things generally go pretty well until lawyers get involved. The modern day lawyer seems to be the equivalent of Old-West characters grabbing for their guns at the drop of a hat, to solve the petty’est (sp?) squabble.

        As soon as you charge the first dollar for a ticket, you’ve got to expect where that is going to lead, as the idea grows. That’s just the way of our world. If an organization doesn’t want money problems, then it would be wise to explore measures which might enable your organization’s tenuous survival without it (such as limited growth, for example). But if there is going to be a fee and growth, you’ve got to accept its nature and inevitable demise.

  13. also I would like to highlight that, while mostly I agree, aspects of this post are Whatsblem’s opinions, not a Burners.Me “we the people” consensus. I don’t believe in the black and white view of the world as presented in this story and the side bar, there are many more options…see my other comments here. I do believe in the right of all Burners to express their opinion, and the right of all Burners to own the art they make.

    • Fair enough. You also write things that I’m not really on-board with from time to time, and I think it’s good for us to be open about that with our readers. I know I don’t like having responsibility for what you say heaped onto my shoulders; I’m sure the feeling is often mutual.

  14. @Whatsblem the Pro: Interesting that you hinge your argument on one principle (decommodification), and yet completely ignore the other 9. “Members only”? What happened to radical inclusion?

    • Radical inclusion, Nicole, is RADICAL, not TOTAL. . . and the term is completely meaningless if you interpret it to be total inclusion. If you’re so radically inclusive, why have a gate, or a perimeter, or tickets, or any other bar to entry?

      By all means, let’s be radical. . . but let’s not be stupid.

    • Incidentally, given the explosive growth of interest in the event combined with the Org’s avid pursuit of more money at any cost, “members only” might be the only way for the culture to survive in the long term. . . because “members only” gives us a tool with which to tightly control the ratio of old hands to newbies, and that control is crucial to maintaining our ability to effectively transmit the culture to new people.

      • I personally like the model, and have suggested it to senior members of BMOrg. It doesn’t deny radical inclusion, just like asking people to provide a drivers license before they buy a gun doesn’t restrict their Second Amendment rights.
        It’s Soho House vs Pacha. I think the problem is that there is no door bitch if everyone is a member. And, there are people in BMOrg who get their kicks from being door bitch.

  15. Just want to share a warning from Burners.Me for the uninitiated: if you download the BitTorrent of this or any movie, some might call you a pirate. Including your ISP in the US. In New Zealand, you can get banned from the Internet for life for using this technology three times. In Europe, you can get elected to parliament as a Pirate. The people behind BitTorrent promote the technology as a tool to share the world’s culture with those who can’t afford to pay for it on iTunes: $1.29 for Missy’s song (“Scar” is better, BTW), $12.99 for the officially financed BM movie, $19.99 for the movie soundtrack album. For the 2 billion+ people in the world that Burning Man says they’re changing who are surviving on less than $2 a day, that’s not an option. Does “radical inclusion” mean “deny the poor people our culture, so only the rich may experience it (by paying BMOrg?)”

    Looking back in the history of Burning Man, I am glad that people like John Law and Chicken John tried to fight for our rights. Whether or not they were successful in the short term, human history is built on heroic figures like this who fought for what’s right even though outnumbered.

    Let’s remember that for all BMOrg’s bluster, they only own the trademark “Burning Man” for community art events. Their claim that we implicitly grant them rights in every other trademark category just by buying a ticket, has been challenged by the EFF and has never been proven in court – by themselves, or other case law.

    Whatsblem, you forgot option 3, Burning Man is a cult and it’s fine just like it is so “if you don’t like it start your own” http://burners.me/2013/11/06/burning-man-love-it-or-leave-it/

    We’ve all created a flourishing culture together, over years, from believing in a vision of an alternative utopia based on personal expression and sharing. It wasn’t BMOrg who shared, we paid them AND we brought all the stuff we shared so they could get paid. We should all be “allowed” by “The Man” to share in the flourishing, and help the culture grow further. If you build an art car and take it to Burning Man, you should be able to use photos of your art car in fundraisers to get it back there. And, you should be able to name the event you’re raising funds to bring the Art Car to so you can share it. When you’re there, you should be able to buy gasoline just like the other art cars who can. I mean, really, who loses from that? Do BMOrg really need to hunt down and capture EVERY LAST CENT, and then some? To me, the culture is more valuable than the money. I don’t begrudge their money, good on them for building a business over almost 30 years; but when they start pretending that all the amazing art and music is thanks to their genius, and they’re in command of all the artists, and they’re changing the world from it…well, I think we’re right in calling them out.

  16. I think the membership idea has merit. There has to be some measure as to whom has permiission to use images and trade dress. While it is much easier to say “no one”, perhaps there is a workable way to “liscence” the images to legitamate participants.

    • there is…it’s the way every other company in the world does it. It’s like a Microsoft Certified Service Professional, or the businesses that display a TripAdvisor logo. BMorg themselves do it with Reuters, as confirmed to us personally by their North American editor http://burners.me/2013/09/27/burners-versus-the-man/
      What does Reuters contribute to our city, that they can profit without limit from photos of us, and yet we can’t use any? What if the rule was “Reuters can get a license, and so can any Burner, at the same terms”? Would Reuters suddenly lose money? Or would 70,000 photographer Burners now be able to profit along with them?
      Seriously, we don’t have to put together 1000 rocket scientists to figure this out. Trade dress I think is no longer an issue, given the last 10 years of commodification since the 10 Principles were thrust upon us.

  17. If everyone in the “community” were allowed to use the trademarks equally, then the trademarks would cease to exist. They’d become part of the public domain. Anybody could use them for any purpose and neither BRC LLC nor anybody else could stop them. Trademarks aren’t copyrights. You can’t just write up a funky license and throw them out to the four winds.

    The only way to let the “community” use the trademarks for Genuinely Burny Stuff™ while protecting it from other commercial interlopers would be to both create guidelines about what they could be used for (surprisingly hard) and otherwise continue aggressive enforcement of the rights. Except now they’d be enforcing them against confused burners who couldn’t figure out how to follow the rules.

    This makes the whole “Spark” garbage even more reprehensible: since there’s no good way to share the trademarks between all of the worthy artists and participants, it’s really cheesy to single out one small group for preferential treatment.

    Then again, singling out one small group for preferential treatment has long come before any of the other principles.

    • Lysenko, you and I are in 100% agreement as far as your conclusions go; your opening paragraph is a different matter.

      You’re right — inasmuch as everything else remains the same — to point out that if a standard like “person who is part of the community” was used to decide who can and can’t use a trademark, that trademark would cease to exist; it’s a silly, unworkable standard.

      I have two points to make regarding all that:

      (A) it wouldn’t be nearly the tragedy that the Org claims it would be if their trademarks entered the public domain, and it would certainly allow all burners (along with everyone else) to use those trademarks to identify their own events as ‘burnerly.’ I really don’t think the occasional Man icon showing up in a TV commercial would have a lot of impact on the culture, beyond further popularizing it. Your opinion may vary, of course.

      (B) This isn’t the only problem with the Org, the event, the legalities, and the culture; it does not exist in a vacuum. . . and a surprising number of those problems across the board could be remedied by making Burning Man a members-only event, in which every recognized burner becomes a shareholder in the corporation. In this scenario, it would be perfectly possible to restrict the use of the trademarks to burners, without public-domaining them.

      Cheers, and thanks for your thoughtful, insightful comment.

      • (A) The issue isn’t seeing a TV character with a Man necklace, and It’s not like U-Haul would actually want to advertise a “Burning Man Special,” but the casinos, plug ‘n play operators, feather boa manufacturers, etc. could all use the trademarks with impunity. It wouldn’t be the end of the world, but it would be a significant change.

        (B) That is a fascinating clusterfuck of an idea, I am right now imagining the burner death panels that would have to be created to sweep out the dead wood. And let’s say that Larry and Sergei qualify as “members” – could they then use the trademarks however they wanted to? But I agree that some form of community ownership would be idea.

        I can state with 100% certainty that there is no simple answer to this question.

      • Lysenko wrote:
        “I am right now imagining the burner death panels that would have to be created to sweep out the dead wood.”

        That’s just one of many challenges that would need to be overcome, but I think it’s not too tough a nut to crack; we could, for instance, give out three hundred memberships to people who just clearly, absolutely have earned them — not a hard list to fill out, I would think — and let them invite x number of people, who can in turn invite y number of people, and so on. Issue new invitations as necessary and prudent to control the ratio of new people to vets, to keep the transmission of culture robust.

        Lysenko wrote:
        “And let’s say that Larry and Sergei qualify as “members” – could they then use the trademarks however they wanted to? But I agree that some form of community ownership would be idea.”

        Yes, Larry and Sergei could use the trademarks any way they wanted to. . . and all the shareholders would get paid equally from those deals. Alternatively: Larry and Sergei could use the trademarks any way they wanted to, but nobody would get paid anything for it.

        Lysenko wrote:
        “I can state with 100% certainty that there is no simple answer to this question.”

        I can agree 100% with that statement.

    • so how come my Sony TV has a Dolby logo on it? I see Dolby logos EVERYWHERE, much more than Burning Man logos. How can Dolby make money, when their logo is everywhere? Wouldn’t their trademark cease to exist? No, that IS their business, they get paid every time that logo is displayed, and only authorized people who pay them and contractually agree to their rules can use it.

      The way to let the community use the trademarks, copyrights, and other IP BMOrg want to protect so their future non-profit can maximize its profits, is called “licensing”. The world’s virtual industries of literature, music, film, art, design, software, etc. are all built on it.

      The words “Burning Man” *ARE* in the public domain. The term was being used for thousands of years before this party, the entire thing is based on a pre-Christian druidic ceremony. Check out the Pink Floyd album “Wish You Were Here” from 1975, with Storm Thorgerson’s amazing photo “The Burning Man”. ( http://www.huffingtonpost.com/2013/04/18/storm-thorgerson-dead-pink-floyd-album-designer-dies-at-69_n_3112807.html ) There are other businesses that are called Burning Man, there is a movie called Burning Man from Australia that is about a chef. There’s a frikking paint company in Texas FFS.

      As for confused Burners, BMOrg are far more confused than Burners. Consistently.

      Your issue with Spark, should be multiplied 1000 times for Google/YouTube.

      All of these IP issues have been solved in Silicon Valley, by Burners. It’s called GPL-3.

      • xxx, I don’t have the time or energy to provide you and other readers here with a primer on trademark law. What I write comes from my education and experience as an attorney. (And I do know how little that matters in an anonymous internet post)

        Most people are a lot more familiar with copyrights than they are with trademarks and they often make the mistake of assuming that they are similar. They aren’t. Among other things, they’re different than copyrights and patents in that they cannot be freely licensed and sold in the same way that books, paintings, music, and inventions can. They represent brands, the association of words with goods and services, and something called “good will.”

        Your Sony TV has a Dolby logo in it because Sony paid Dolby for the right to put Dolby technology inside of the TV and the Dolby logo on the outside of it in the hopes that Dolby’s brand appeal will want to make consumers buy it. Every Dolby symbol you see is not only licensed but it appears in connection with an actual use of Dolby technology. Dolby might spend hundreds of thousands of dollars a year monitoring the market for unauthorized uses of its trademarks and taking the steps necessary to prevent it.

        As far as multiple entities using the same words to describe themselves? Apple computer sure hasn’t filed a trademark infringement lawsuit against Red Apple supermarkets! Why? Because they sell different things!

        This is a good place to start learning more: http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm

        But please take me at my word when I tell you that there is no simple solution, magic license, or any other way the IP could be licensed without substantial work on the part of the borg. Would artists be willing to pay even a small licensing fee to cover the costs of administration? Would you be happy if they just rolled the cost into the price of a ticket? It would be at least 1 FTE year-round plus plenty of legal fees…

      • thank you for writings Lysenko, it’s good to have a voice that truly understands the complexity of all this. I trust the words of an experienced professional more than the opinions of bloggers

      • Thanks, I wasn’t looking for a primer, I was questioning your statement that “You can’t just write up a funky license and throw them out to the four winds”. We have covered this topic in depth on this blog already, for more details see:

        http://burners.me/2012/05/24/the-law-of-the-desert/ and
        http://burners.me/2013/06/12/do-not-use-the-words-burning-man/

        Despite BMOrg’s claims, they do NOT own the trademark to the words “Burning Man” in every trademark category. They just act like they do.

        You absolutely could have an “Official Burning Man partner” logo, like the Dolby symbol or Good Housekeeping Seal of Approval, which then could be licensed by BMOrg to third parties making money in categories broader than the ones their trademarks are registered in. For example:

        http://www.trademark.af.mil/
        http://twenty10soccerworldcup.wordpress.com/2010-world-cup-soccer-faqs-facts/using-fifa-world-cup-logo-amp-trade-marks/

        I understand that I am suggesting something slightly different than putting their IP in the public domain and making it a free-for-all, or some sort of “we all own a share equally” communist-style approach, as Whatsblem has proposed in this post.

        In the scenario I’m imagining, BMOrg would absolutely get paid by the people who get endorsed as official partners.

        PS: Apple is not the best example for your argument, since Apple Computer was in a very famous trademark infringement suit with Apple Records.

      • Sure, you could have a paid licensing system that was limited to specific uses – but who would be willing to pay for it, and who would decide which goods and services were appropriate? Giving a few more well-heeled insiders permission to use the trademarks would not fix anything at all.

        And Apple Music coexisted just fine with Apple Computer until the latter got into the music business… 😉

        • BMOrg could use licensing like this to enable and empower all the burners who want to spread their culture around the world. Instead of using licensing to attack and destroy them, so that ALL culture always belongs to them alone forever.

          Apple Records first sued Apple computer in the 70’s, barely a year after Apple was incorporated. This created 4 years of legal problems for the fledgling company. Apple Computer was not in the music business then, or anything close to it. The Apple I and Apple II (at the time of the suit) did not even have sound processing chips. The eventual outcome of that was an $80,000 cash settlement and a “stay off each other’s turf” gentlemens agreement in 1981, after Apple had gone public and created more millionaires than any company in history. Apple was accused of violating that agreement in 1989 when they put MIDI interfaces in computers
          http://gizmodo.com/5141575/apples-bloodiest-patent-and-copyright-clashes

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