Back In The Day

In the current lawsuit between “non-profit” BMOrg, and non-profit BurnBC, a Canadian arts collective, BurnBC claim that “Burning Man culture” was something that arose in Canada independently of  how the US Burning Man culture developed and was seized by corporate interests.

Certainly, TTITD was not called “Burning Man” for many years. The first trip by the Cacophony society in 1990 was called “Zone Trip # 4”. Their first permit was issued in 1991 – it is not clear to whom, or if the permit mentioned Burning Man at all. By 1992, they were marketing the Cacophony Society event with the words “Burning Man” and asking for donations of $25. The first ticket sales were in 1995. In 1997, they formed a corporation “Paperman LLC” and registered the trademark. Larry Harvey let the corporation’s registration lapse, and the trademark was filed again in the US in 2003. The trademark has now been transferred from “The LLC” (Black Rock City, LLC, which puts on the Nevada event, and this year was sold to The Burning Man Project), to “Decommodification, LLC” (a private, secretive company created by Burning Man’s founders in 2010 to own and monetize the intellectual property assets).

first flyer 1987

We can date this flyer to 1987 because that’s when June 20 was on a Saturday. The )'( logo was probably added later

cacophony flyer for zone trip 4

the Cacophony Society’s 1990 flyer mentions “the Burning Man” and “Burning Man committee”

1992 black rock desert trip flyer

Cacophony Society and Burning Man founder John Law says that the Cacophony Society came up with the name Burning Man, and used it to describe the Baker Beach burn in 1989. This is in direct conflict with Burning Man’s trademark filing, which claims the mark was first used on June 1, 1986. To put that in perspective, their first Solstice burn (with a wooden dog effigy also) happened on June 21, 1986. Either they called it Burning Man before they ever built and burned a man, and had a vision for it being a money-spinner from the get-go, many years before they first sold tickets; or someone is being fast and loose with the truth. Here’s Larry Harvey saying the event began in 1985, a claim that is not supported anywhere else:

Note that the capture and deliberate incarnation of a spirit is the stated purpose of the event.

Burning Man’s trademark application was filed in 2003, and approved in 2010. It claims that the mark’s first use anywhere was 6/1/1986 and its first use in commerce was 6/1/1987.

From Trademarkia:

International class code 41, and US classifications 100, 101, and 107: “Education; providing of training; entertainment; sporting and cultural activities”

ORGANIZING COMMUNITY FESTIVALS FEATURING A VARIETY OF ACTIVITIES, NAMELY, LIVE MUSIC, ART DISPLAYS, AND PARTICIPATORY GAMES; CONDUCTING ENTERTAINMENT EXHIBITIONS IN THE NATURE OF ART FESTIVALS; AND ENTERTAINMENT IN THE NATURE OF ART FESTIVALS

According to Wikipedia, the first ticket sales were in 1995 ($35). It’s hard to see how the mark was used in commerce before then, although Larry’s friend Flash used to sell t-shirts: “I had my concessions. I was the only one who made money, every single time” (This is Burning Man, Brian Doherty, p 111)

 

Cacophony Society flyer, 1990

Cacophony Society t-shirt, 1990

Michael Mikel’s 2006 lawsuit claimed:

“In 1997, the claimant, Michael Mikel, formed a Limited Liability Company with respondents Larry Harvey and John Law. That company is known as Paperman, LLC…[it] owns one asset – the federally registered mark BURNING MAN – and Paper Man has one business activity, to license the mark BURNING MAN to its licensed operators of the desert arts festival that uses that name… Ever since its creation in 1999, Paper Man LLC has licensed the mark Burning Man to Black Rock City LLC for its use in connection with the desert arts festival

…on May 14, 2000, Paper Man LLC and Black Rock City LLC entered into a re-stated license agreement…[that] gave Black Rock City a non-exclusive, non-asssignable license to use the service mark for a period of 7 months…at a license fee of $1800

….in 2004, however, Black Rock City LLC announced that it would no longer be bound by the written agreement. Instead, Black Rock City demanded that Paer Man sign a one paragraph document that granted Black Rock City an exclusive license but failed to include any terms for quality control or maintenance of Paper Man’s right to police the mark. Paper Man, nonetheless, has continued [to] exert control over the mark, despite Black Rock City’s regular protests

…Michael Mikel learned, under established principles of trademark law, the type of “naked license” that Black Rock City demanded from Paper Man can be worse than no license at all…it would be possible that the designation BURNING MAN, and thereby the event itself, could fall into the hands of a corporate owner, in direct contrvention of every principle of which the BURNING MAN festival was founded

…Larry Harvey presumed to act for Paper Man LLC, and then used that position to obtain a benefit for himself in his capacity as Director of Black Rock City LLC…His action was simply the latest in a series of efforts to seize control of the BURNING MAN mark, to exclude other members of Paper Man LLC from participation in the comapny’s operations and control of its assets, and ultimately to divert ownership of the mark from Paper Man LLC to Black Rock City. These actions, undertaken in secret and in complete contravention of Paper Man LLC’s interests, constitute a breach of the fiduciary duty…Larry Harvey’s conduct over the past several years towards Paper Man LLC and its other members demonstrates his on-going disregard of – indeed, contempt for – the obligations of utmost good faith and loyalty that he owes them. 

John Law then got involved in the suit, arguing that BURNING MAN should be in the public domain. The case was settled out of court.

If Burning Man is really a movement, the name should belong to everyone, not three guys who don’t get along anymore,” Law said.

From the Black Rock Beacon:

a crucial point is Law’s contention that it was the Cacophony Society that came up with the name “Burning Man.” His suit claims that the term was coined in a 1989 Cacophony newsletter. Law claims he and the Cacophony Society also played a critical role  in moving the event to the Desert. Harvey was “completely defeated and dejected” when police blocked the 1990 Burn in San Francisco, but Law says he suggested burning the Man at an already-planned Cacophony trip to Nevada. The Nevada Burn was successful, although Law claims Harvey “did not participate at all other than to arrive at the event as a spectator after it was completely set up.”

John Law: “I was sleeping in Golden Gate Park in 1976, after hitch-hiking here with an arrest warrant out for myself in some central state…then I met all these weird people and it’s been ongoing ever since”

This film from 1994 shows the term BURNING MAN being used at the event’s gate, and on t-shirts.

In 1994, Australia’s government TV channel ABC aired this documentary from Journeyman pictures. Check out the drive-by shooting range, including bicycle drive-bys.

Larry considered himself a “social engineer” even way back then, and Satanic (death of god) religious values were very much a part of it: “it’s like a religion that you make up as you go along”…”the camp was divided into Heaven and Hell, with angels and demons competing for lost souls”…”Bill Smythe is known in Hell as the father of devil spawn”…”this is just a big slumber party for Boy Scouts from Hell”.

One of the more astonishing claims in this video is that “the Monks from Heaven” were recording video of Burning Man and uploading it to the Internet at $9/minute via a satellite phone. This was before the first advertising appeared on the Internet. In 1994, it had only recently become possible to view color graphics on the World Wide Web. There was no standardized digital format for video files, there were no browser plug-ins to play video – there were barely even any browsers. Stanford spin-off Yahoo was a document you downloaded with a list of web sites, not a search engine. The first YouTube uploaded was in 2005. This demonstrates that as early as 1994, Burning Man’s attendees had access to the world’s most advanced technology, very probably military-grade.

From Quora:

The first video footage ever shown over the Internet was probably a live feed of a June 24, 1993 performance by Severe Tire Damage, a garage band consisting of employees of DEC Systems Research Center, Xerox PARC (company), and Apple Computer.  The footage was broadcast on the Internet just a few months before researchers at the Computer Laboratory of the University of Cambridge created the first webcam by broadcasting static footage of the Trojan Room coffee pot on the Internet in November 1993…conditions were so primitive by today’s standards that broadcasting the video of Severe Time Damage into cyberspace required hogging almost half of the bandwidth of the entire Internet.

The first image on the Internet, July 1992

The first image posted on the World Wide Web, July 1992

A random bunch of hippies could use half the entire Internet for their desert festival? Who the Hell was watching?

14 comments on “Back In The Day

  1. Pingback: Quick Update from Canada | Burners.Me: Me, Burners and The Man

  2. Burning man was called burning man before the cacophony connection. In the first couple of rough drafts it was mentioned in, it was under the “sounds like cacophony” section, not a cacophony event. In the September 1990 issue of the rough draft, as you show above for the Zone Trip #4, it also shows the distinction… “We will be accompanied by the Burning Man…”

    Larry and Jerry named it Burning Man in 1988 because it needed a name and the two words together, Burning Man (as in mankind), expressed what it was well. Lumber man, wicker man or burning person just didn’t make the cut.

    I was on that burning man committee mentioned in the same rough draft, ‘back in the day.’ We had gotten shut down on the beach and found a new home in the desert, the other venues being sought fell away. As it turned out, everyone that was involved with burning man and everyone that was involved with cacophony instantly blended, it was like mixing water with water.

    The second year in the desert, in 1991, was not billed as Zone trip #5, it was called just Burning Man, at its new found home. It was the first year the event had a legal permit with the BLM as the event had been called since 1988 — Burning Man. As it grew over the years by word of mouth, it became a pilgrimage gathering of, and creating of tribes. I believe it is still that, just bigger.

    (The Cacophony Society started to fade later in the nineties as the internet and e-mail supplanted snail mail which was the vehicle that carried its main ‘organ’, the Rough Draft monthly newsletter. Laughing Squids squid list and a couple of other email lists with weekly and daily updates of things happening, opened the community to more activity and more people.)

    This whole battle over copyrighting the name is not hard to call. If it was in the public domain, it would no doubt be exploited by anyone that wanted to make a buck or two by plastering the name on their product; a baseball cap to girls gone wild videos. I totally get the desire to protect the name and think its a good thing. I don’t buy into the idea that the copyright is used to exploit those who feel motivated to participate/contribute. I also don’t believe it thwarts the culture, you can say your event is like, inspired by or even predates burning man, you just can’t call it that.

    BurnBC is fine, burningmanBC, sounds affiliated to me, guess it wasn’t, by both parties anyways… sorry it came down to using lawyers and the legal system to come to an understanding… though I don’t believe they are really planning on collecting on this debt incurred. If he’d made the change when they requested it… oh well… guess thats what money is for… end rambling… way too much ballyhoo on all of this already here…bla…

    …It’s one thing to request or start a petition for putting the name in the public domain and another to attempt to force it… I think that’s what happened here…?

    PS. The Monks were/are total cacophonistas, they were way ahead of the game riding the cutting edge… see: monk(dot)com

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  3. Pingback: Help Canada | Burners.Me: Me, Burners and The Man

  4. This is great looking back to the “early years” on the Playa. They are probably off with their dates in terms of use of June 1st, 1986 (or 1985, per Larry’s brain glitch): but “use in commerce” could be as simple as “advertised in some way” like making a flyer…Often it involves selling or advertising, often across state lines to qualify for Federal TM status/registration. The “in commerce” means “some commercial use” (regardless of profit–generally, on the first use, one wouldn’t profit–not until later)…

    Liked by 1 person

    • John Law claims the Cacophony Society started using the term in 1989. The first printed use of the term I can find is 1990 – again, by Cacophony. Paper Man, LLC and Black Rock City, LLC were incorporated much later in the 90’s; by the time Decommodification, LLC was started “BURNING MAN” had been used for nearly 25 years.

      Clearly, the term was used by the community before it was in use by any of the corporations.

      Nobody is questioning that Decommodification, LLC is now the owner of the US trademark; however, what rights they have to the term in Canada are under question in the current legal stoush. BurnBC is claiming the term was in the public domain in Canada already, when Paper Man first registered the US trademark. Could Canadians have had “Burning Man” events before Paper Man, LLC registered the US trademark Burning Man? From the timeline it seems they could have, so calling their Canadian events “Burning Man” was not necessarily ripping off Paper Man, LLC’s US events. Of course, they would have to prove that in court. So far we haven’t seen flyers or other evidence of the Canadian early 90’s Burning Man events…if anyone has any, please share.

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  5. I just watched a TV commercial for Bodyform panty liners (in the UK) – part of the visual montage was the shark car and then a close up of people dancing on it (actually on the playa during the event).

    Liked by 1 person

  6. “Use in Commerce” is a term of art in trademark law which means pretty much any public/published use of a ‘mark’ in conjunction with an actual activity, whether or not for profit. FYI

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