Is there anyone out there who thinks Burning Man doesn’t care about lawsuits any more, because it is a charity and cares more about spreading Burner culture than it does about profit? If so, sadly, you are mistaken.

In the latest development of the continuing “BMOrg vs Burners” war, Decommodification, LLC has filed suit in the Federal Court of Canada, against burningmanarts.ca – long-time Burners who are the current holders of the “Burning Man” trademark in Canada. This Vancouver-based non-profit group trace their lineage to the Baker Beach/Cacophony Society Days. Old school original Burners, coming from the true essence of this movement, Shao Lin style. Their Burn BC Facebook page has 1100 followers. From burnbc.org:

The Burn BC Arts Co-Op is the first registered non-profit arts cooperative in BC.

The Burn BC Arts Cooperative was founded in May of 2007, and first incorporated in October of 2009 under new legislation recognizing non-profit cooperatives. Burn BC was restructured under a new incorporation (August 27, 2013) to apply for charitable status to facilitate the development of an Industrial Arts and Multimedia Arts Centre in BC.

Burn BC supports local creative initiatives, like The Cacophony Society, Outsider Arts, Mutant Vehicles, Art Cars, Fire Art, and Performance Art that encourage “Creative Self Exploration with Mutual Respect of Personal Boundaries”. We wish to support forms of Art that generally fall outside the bounds of traditional fine arts aesthetics, and receive less support and recognition then more traditional forms of Art.

Created around an organic and casual administrative process to facilitate ease of access by the outsider arts community, Burn BC encourages participants to experiment with developing our distinctly Canadian Burning Man culture, by celebrating Open Source Cultural groups like The Cacophony Society, and the many wonderfully creative organizations and groups throughout BC.

Burn BC has evolved with one guiding principle relating to our Burning Man culture.
“Creative Self Exploration with Mutual Respect of Personal Boundaries”

The Burn BC Arts Co-Op has four general goals.

• Establish the “Cascadia Burn”
  A Leave No Trace, No Vending, Temporary Autonomous Zone somewhere in BC.
• Establish a Burning Man™ Arts Centre
  To be used for collaborative community projects involving industrial and multimedia arts.
• Fund and manage a creative property.
  To be used for Arts Retreats and to store large scale sculptures and creative projects.
• Foster Arenas of…
  “Creative Self Exploration with Mutual Respect of Personal Boundaries”
  By cooperating and collaborating with community projects, peer organizations and events that participate in the overall cultural paradigm of “The Burn”.

When hosting special events we ask people to:

• Respect the Space
• Respect the Art
• Respect Each Other
• Respect Yourself

This seems real to me, so perhaps it’s unfortunate that they chose April 1 to start this project:

The Burning Man Arts Association is a Cacophony Society project that was founded April 1st, 2014 by Bhak Jolicoeur and the Burn BC Arts Cooperative to support the Burning Man Culture that developed between 1990-2003.

Bhak Jolicoeur has been intimately involved with The Cacophony Society, Fire Arts, and the Burning Man culture and Burning Man community since the early 90′s.

We love to celebrate Burning Man through, play, dance, music, art, performance art, and the chaos of spontaneous creative fun. We have supported initiatives that are open to the organic process and the ephemeral experience, and find much joy in fostering arenas of personal exploration.

We have been intimately involved in the creation and development of many wonderful projects and events since the early 90′s.

• 

  parade of lost souls, Vancouver

  The Vancouver Cacophony Society

• The Cascadia Burn
• The Orange Party
• The Fools Parade
• Radiant Heat
• Vancouver After Burn
• The Work Less Party
• The Car Free Commercial Drive Festival
• Parade of Lost Souls
• Illuminaries
• Burn in the Forest
• Recompression Vancouver
• Decompresson Vancouver
• and various Burning Man art projects.

We love to celebrate life.

If this is all just an elaborate joke, it’s a very clever one. Burn BC have hit back at BMOrg with a cyber-offensive, a web site that clearly makes their arguments. What they’re saying sounds very reasonable to me. BMOrg’s presumed argument that “this takes money away from us that is rightfully ours”, is weakened by their other argument that “we’ve given everything to a non profit, Burning Man is about helping the world not making money”. You can’t have both, BMOrg, either you want money so much that you’re prepared to sue your own customers in the hope of getting even more, not from your efforts but taking it away from theirs; or, you’re not about money.

 

Open Source Culture

I like what they stand for – freedom, openness, inclusiveness. Burners profiting together from Burner culture. They’re on the side of Open Source Culture, as are we. Open Source works, it fosters innovation, and people can still get rich from it. This technology industry approach to Intellectual Property has built the Internet, and made San Francisco the second richest city in this country.

Do we want Burning Man to become Disneyland 3.0, or stay more like it has been for most of its young life – something new and fresh that is spontaneously created by us all, and shared by us with each other?

Nomad Traveler just shared a great comment here about “stone soup” events, where everyone is encouraged to give. This was the essence of the spirit that gave birth to Burning Man, the culture that was harnessed and packaged into an LLC (and now, multiple LLC’s) as well as tax-exempt entities.

So far, for all the hoopla, the Burning Man Project “outreach” is uber-lame. It is as if they “discovered” the stone soup idea, which ironically did NOT include exploiting others for personal profit. You can squeeze a lot of “free” time and stuff out of people, but if you are not giving back more, that pretty much disappears over time. My stone soup organizations have been around for decades, so they seem to be working. We all pay expenses and time to participate, and we pay annual dues to let the organization have some operative overhead and full-time staff.

And we get grants and commercial support, that is used to help develop information for us all to use to work better. But those funds are spent based on ideas from the base-level members, not from top-down decisions. And we do get to vote on who holds those top jobs.

“Sharing” and “gifting” – are they really important to BMOrg? If they were then there’d be no need for these discussions, let alone expensive international law suits. The Burning Man Project would be immediately opening the books, opening the suggestion box to ideas, opening the source code of their systems, opening the governance of the temporary city to include its residents out of civic responsibility, radically including everyone who wanted to radically self-express, gifting the use of their name and logo and expertise to any who wanted it. Basically, all the things that Burn BC say they want to do with the ownership of their Burning Man trademark. Instead of doing this, though, BMOrg seem more into hosting panel discussions.

“Decommodification, LLC” is an ironic name for the lawsuits vehicle. The royalty stream from the events to this entity will have to be large enough to fund the legal bills – but that doesn’t guarantee BMOrg victory. If they lose, they will have to pay all the legal costs for the trademark owners as well as funding their own expenses, and possibly additional penalties. Which in turn means we  Burners will have to pay, through higher ticket prices and new taxes. The fact that Canada is not a signatory to global intellectual property treaties could be a significant issue in this case.

This case could set a strong precedent for the spread of Burner culture around the world. Are Burners “allowed” to dress up, dance around, and drive around in art cars in their hometowns? Is this a natural part of Burner culture spreading? Or may only BMOrg, sorry, Decommodification, do these things? Does the bureaucracy make the culture, or the Burners? And where do you draw the line – or, perhaps more appropriately, the target? Is it raves ecstatic trance rituals? Raves in the desert? Raves where people wear “leather and feather”? Ritual effigy burns? Anything called Burning Man, anywhere, any time? What about the movie called Burning Man then?

Perhaps Decommodification LLC thinks that American laws just automatically apply everywhere on the planet, and override national laws. This approach might not go over well with the local Vancouver media, although as we’ve seen in the past, BMOrg seems to think “any publicity is good publicity”.

Just because Burning Man’s founders think “the mainstream is becoming like Burning Man”, doesn’t mean they suddenly own everything, everywhere. A legally registered trademark in another country, is governed by the laws of that country. The days of America stomping all over the legal systems of other first-world countries are long gone – unless Burning Man has some special level of protection that can over-ride national laws. Canada in particular has a long history of resisting these kind of corporate bully tactics from United States corporations, both politically and legally. If Decommodification wanted to protect their trademark in different nations, they should have registered it in those nations. A small fraction of their annual legal budget would have covered every country in the world, and perhaps in multiple categories of use too.

This suit offers a glimpse of the thinking that’s really behind the “100 Years Plan” to spread Burner culture around the world with a “non-profit”. Spent 30 years creating the culture you co-founded, back home in your own country? Tough titties, Burning Man owns that. Have a legal trademark in your country that was registered before theirs? So what, Burning Man has lots of lawyers and will sue you anyway.

Here’s one example of what the Burning Arts crew have to say about Principles:

“Transformation” can happen almost anywhere, even the Proprietary Culture of the Juggalos can manifest experiences that emulate non-lucid “Transformation”. The way they reference “Home” and “Family” with their experience may seem uncomfortably familiar to some. It’s up to you to judge the quality of the Juggalo “Transformation” or what they are transforming into.

The “success” of Transformational Events, aren’t really measured by “How Many” are involved, or “How Much” is made. Success is more relevant to whether or not the event can facilitate an unmediated experience. The foundation of the lucid transformational experience is Immediatism.

They are not looking to deny the past – more, it appears, to learn from it.

When the Burning Man Arts Association was initially formed to foster Burning Man™, we looked at declaring concepts like “Mission Statements”, and “Vision Statements”, and defining things like “Codes of Conduct”, and found that they imposed limited personal aesthetics and definitions on participants.

We realized very quickly that while we (personally) want, and like, people to dress up, have fun, be silly, (celebrate Burning Man™); the intent of our project to support Burning Man™ and foster personal growth and transformation, could get lost in the mix. In over defining we could quickly digress into little more than well produced costume parties hosting re-branded Raves. The substance of the experience would be overwhelmed by the pressures of production, consumption, and expectation.

“If I have seen further it is by standing on the shoulders of giants.”

So we asked ourselves…

• What do we want to encourage?
• What is Burning Man™?
• How has it evolved?
• What is our local relationship to our Burning Man culture?

We contacted, and met with, the people who created the San Francisco Cacophony Society, we talked with members of the San Francisco Suicide Club, we took time to gain insight from the people who manage the American Burning Man festival in Nevada. We reflected upon our local experiences over 20 years with Burning Man™, and asked ourselves how we wished to critically consider the decisions and evolution made by all our peers who preceded us, reflected conclusions on our perceptions of our Burning Man culture, then worked out solutions that reflected our desire to offer catalysing environments for lucid transformational experiences to potentially manifest.

Two important elements we considered….
– Play
– Immediatism

We discovered that these two elements are critical to fostering lucid transformational experiences. By focusing on the least imposing rhetoric or bureaucracy possible, we could foster these two important elements and help catalyse the potential for lucid transformational experiences to manifest at our Burning Man™ events.

Founder Bhak Jolicouer provides more information about his history here. Significantly, he had been participating in Burner culture for almost 20 years before he ever attended the Burning Man event in Nevada in 2004. At this point in time Decommodification LLC (the new privately held for-profit company that owns and controls the royalties from the events) didn’t even exist. The American Burning Man trademark (in the arts festivals category) was first registered in 1995 , then allowed to lapse, then registered again in 2003. The company that owned the trademark, Paperman LLC, was also allowed to lapse, as Larry Harvey didn’t pay the corporate fees. In 2006 Larry signed a 10-year licensing agreement between Paperman LLC and Black Rock City, LLC for the trademarks. This seems to be expiring before the Founders exit, and presumably there is an expectation that the Nevada Burning Man festival will want to renew it. This would set a price  precedent for the Regionals. The Intellectual Property Assets were the subject of a very public lawsuit with Burning Man founder John Law, who tried to keep his co-founders Larry Harvey and Michael Mikel true to their vision and promises of inclusivenesses. In 2007, he sued for Burning Man to be free. “If it’s a real fucking movement, they can give up control of the name”, Law told the SF Bay Guardian. The lawsuit was settled financially out of court for an undisclosed sum.

Maybe there’s still hope that Burner culture will survive corporatization and regime change at the Nevada event, because it’s already grown much bigger than that. The Black Rock City Population is capped at 70,000 for the next few years; tickets for sale were capped even tighter, at 61,000 this year. There are many more Burners than that on this planet. Burners.Me has been visited by more than 2 million people from 212 countries. Burning Man lists 46 official Regional events on their site. However, some of those are Pre- or De- compressions, most of them are in the US, and one is in virtual reality: Burn2, in Second Life. The number of countries throwing proper Burns in the official Burning Man list of Regional events is 6, plus the United States.

Burning Man Arts have provided a pretty easy to read FAQ, reproduced below. If they win this case, Burners elsewhere in the world will be able to license the name Burning Man from them as an alternative to BMOrg. It sounds like they are offering MUCH friendlier terms than Decommodification, LLC (who is the legal entity launching the law suit against them in Canada). Of course, if someone owns the Burning Man trademark in another jurisdiction, then that would take precedence over either of these groups’ ownership claims.

The battle is just beginning, and we will bring you more information as we get it. We invite both parties to communicate with us and share their side of the story.

__________________________________________

from http://burningmanarts.ca/our-rights-faq/

FAQ

Here are some FAQ’s regarding our rights as independent Canadian Communities, and why we are defending our existing legal rights in Canada, and our obligations to these rights in Federal Court with the action commenced by the American Corporation Decommodification LLC.

Burn BC and the “Burning Man” mark

Burn BC currently ‘owns’ the “Burning Man” mark in Canada. While Burn BC has full rights to use the mark, we cannot license use of the mark until it has been properly transferred to the Canadian National Non-Profit Arts Organisation (The Burning Man Arts Association).

We are not stopping anyone from using it, have no desire to sue Burners, and when the transfer is complete, we will allow it to be used by our communities and by Artists who respect the Burning Man Culture in Canada. The mark will not be used, owned, controlled, or influenced by Corporations.

We do not speak for the community or have any desire to speak for the community. We are not asking you to conform to an identity, take sides, or adopt any edicts. We are setting this up so each of us can continue exploring self defined, and self managed personal identities and communities with respect to our Burning Man Culture and it’s roots with the Suicide Club, theCacophony Society, Zone Trip #4, and how we evolved our culture from 1990-2003 as the Burning Man Culture.

Our self defined personal creative self exploration has always been at the core of the sublime beauty we have loved and respected with our Burning Man Culture, and Burning Man Communities; An ephemeral and beautiful space beyond the reach of Corporations and Dogma.

NOTE: We have no issue with Corporations. Some of our very best friends are Corporations. Many Burners work for corporations, and own corporations. Our only desire is to experience ephemeral Immediatism with environments beyond the reach or influence of Corporations or Dogma.

 Decommodification LLC

You have to understand that in Canada we currently and completely own our rights to our independently developed communities, our expressions, and our “Burning Man” marks.

This action commenced by Decommodification LLC is an attempt to take these rights away from us and claim our communities, our expressions, and our rights to our “Burning Man” marks in Canada, and claim our rights, communities, and expressions, as property of the American Corporation called Decommodification LLC. This is not hypothetical, this is in writing in the “Statement of Claim” filed in Canadian Federal Court.

In the Statement of Claim filed in Federal Court, Decommodification LLC claims our communities, and the expressions of our communities and culture, as property of the American Corporation Decommodifcation LLC.

Decommodification LLC
– VS –
Burn BC Arts Cooperative

To understand this case, and why it matters to you as an Artist and/or a Burner, and to anyone that celebrates culture in Canada; you have to understand this is about an American Corporation claiming our Canadian Communities, our Cultural expressions, and the very format we use to gather, as property of the American Corporation and it’s 2004 American Brand.

Passing Off

To understand the confusion that is being passed off on our community. You have to understand there are TWO “Burning Man”.

1: The Original Burning Man Culture that was formed on the foundations of the Suicide Club(1977), and the Cacophony Society (1986), and Zone Trip #4 (1990) and how we evolved on these foundation between 1990-2003 creating one of the most relevant events our culture has created and experienced.

2: The proprietary American brand that was registered in 2004 in the United States created by an American Corporation, and based off the expressions of what we created at our home in the Nevada Desert between 1990-2003.

Trademark Law

Decommodification LLC
will be referred to as
Black Rock City (BRC)

• Doesn’t BRC have a worldwide trademark?

The 2004 “Burning Man” Brand Registered in the United States is also registered with the World Intellectual Property Office (WIPO). Canada has never signed the Madrid Protocol and is notunder the jurisdiction of WIPO.

• Does BRC own our mark in Canada?

No; currently WE as Canadian Burners do. For an American Corporation to own a mark in Canada, it must register the mark with CIPO, and do business in Canada through a Permanent Entity.

• Is Canada part of WIPO?

No. For a company to register a mark in Canada it has to do business in Canada through a Permanent Entity, and Register a Trademark with CIPO. Canada has never signed the Madrid Protocol and is not under the jurisdiction of WIPO.

• Has BRC ever done business in Canada?

BRC has never done business in Canada through a Permanent Entity. Our independently developed communities pre-date the 2004 registered mark in the United States, and are not Permanent Entities of the American Corporation.

• Is the “Regional Network” a permanent entity for BRC?

No. Regional Contacts are not partners, or employees of BRC. The RC network was started by a person who self appointed himself as a contact point in 1997. The RC network was an informal contact point for our independently developing communities, and was not formalized under the Ten Principles until 2004

• Does first use count with CIPO?

No. CIPO goes by first to register, and only looks at existing registered trademarks in Canada when considering opposition to a mark.

• The Nevada Burn has existed for years, does that count as first use in Canada?

No. BRC registered it’s new brand in the United States in 2004. Our independently developed Burning Man communities formed symbiotically with the 1995 Registered Mark that wascancelled in 2003. That mark was not owned by anyone anywhere for two years.

• Does NAFTA apply to this?

NAFTA is a trade agreement. Trademarks are managed by the Canadian Intellectual Property Office (CIPO)

What is Burning Man?

• Did the American Corporation create our culture?

No. Our culture created the Nevada Burn from the roots of the Suicide Club and the Cacophony Society between 1990-2003.

• Did BRC create our communites?

No. The BRC American Mark is in reference to the Baker Beach Burn which was shut down by authorities in 1990. The Communities had already been established through the Cacophony Society and gathered in the Black Rock Desert from 1990 onward.

• How did our Burning Man Communities Form?

Our Communities developed from the Cacophony Society and it’s loose affiliations, with roots to the Suicide Club dating back to 1977. Between 1990-2003 Burning Man and the Cacophony Society were synonymous.

• How did our culture become Burning Man?

In 1990 the Cacophony Society hosted Zone Trip #4. It was primarily a Cacophony Society event with the man sculpture added at the last minute. From 1990-1995 the Cacophony Society adopted the Burning Man name in reference to the burning of the man sculpture at their event. From 1990-2003 the Cacophony Society and Burning Man were synonymous. Many Burners hosted Cacophony Society events including Santacon. The loose affiliations of the Cacophony Society became the loose affiliations of our Burning Man Culture, and no one owned us.

• Who owns our Canadian Burning Man Communities?

WE do. Currently our Canadian Culture has developed independently over the last 20 years. We have had a loose affiliation with Burners everywhere, and our relationships to the “Regional Network” have been as a networking process, not a governing body. As Burners who celebrate the Burning Man Culture, we celebrate the achievements of Burners around the world. The Nevada Burn is the most notorious accomplishment created by our culture.

• Who created the Nevada Burning Man Event?

Our Culture created the event between 1990-2003. The Format, the style, the content were all self defined elements expressed by our culture. The infrastructure was organized by the hosts of our culture and how we expressed ourselves there. We have always assumed all liability, cost, and responsibility, for the content and expressions we created and expressed at the Nevada Burn.

• Does the BRC Regional Network Represent our Culture?

No. We are self defined. The Regional Network is now being used to re-brand our independent culture with a new Corporate Brand developed in 2004. This new brand is intentionally causing confusion by misrepresenting itself as our culture.

• Do we have to be recognized by BRC to be a Burning Man Community?

No. We own these rights in Canada. We have full rights to develop our Burning Man Communities as we please with respect to our Burning Man Communities and the Original Burning Man Culture that developed between 1990-2003. The Nevada Burn has always been something created by our culture and hosted in the Black Rock City. BRC represents the company that organises the infrastructure of the Black Rock City.

Burning Man in Canada

• Who will manage our marks in Canada?

The Burning Man Arts Association will host Burning Man Arts Events, and help communities that wish to celebrate our Open Source Burning Man Culture in Canada. Organisations, individuals, and communities can become members of the Burning Man Arts Organisation to offer input and guidance to the Burning Man Arts Association.

• Who will have access to our marks?

The Burning Man Arts Association will invite Burners to become members of the organisation. It will be managed by our community, for our community, to support our community. The “Burning Man” mark will be protected from use, ownership, control, or influence by Corporations. It will be used to support Art, and Arts Events outside the reach of Corporations and Dogma.

• Why not just apply to the American Corporation to be recognized as “official”?

The American Corporation manages a proprietary brand created in 2004. We own our rights in Canada. There is no need to give away these rights to a disinterested American Corporation and it’s 2004 proprietary brand based on our culture. We have no desire to interfere in the Business of an American Corporation and how it conducts it’s business in the United States.

• Can we still celebrate the Nevada Burn?

Of course. We are Burners, and our culture created the original event that the Nevada Burn is based on. We have no issue with the Nevada Burn, and many of our friends and family love the experience of the Nevada Burn.

• Can we be an independent Burning Man in Canada and still support the Nevada Burn?

Yes. The Nevada Burn is an event in the United States. It is not a Canadian Event. We can support it as a great achievement by our Burning Man Culture and have mutual respect for each other as Burners.

Artists and your rights

• Who owns my Artistic License? You do.
• Who owns my Art? You do.
• Does the Burning Man Arts Association control the content of my Art? No.
• Can I receive payment for my services? Yes.
• Can I sell my Art made for Burning Man events? Yes.

What you can do.

• First and foremost do not give up the rights you have earned in Canada. The only Corporation threatening the rights we have earned for our community is this American Corporation that does not own the rights to our communities in Canada. Do not be swayed by rhetoric to gain favour with an American Corporate Brand.
  YOU are Burning Man.
  Own it.

• Write to Decommodifiaction LLC and tell them to drop this case. These rights in Canada are yours, they are not the property of this Corporation. We can have a mutually respectful, independent, and self defined relationship.

• Contact us to support us with legal help, or donations to support the defence of our existing legal rights in Canada. All funds will be used for our legal defence fund, any funds left over will be donated to the Burning Man Arts Association, and used to support the Burning Man Communities in Canada.

If there are any questions that have not been addressed in this FAQ, please let us know by sending an email to FAQ@BurningManArts.ca