Suing For Your Supper [Update]

Thanks very much to Burner ShaggyDog for this guest post about some of the legal issues surrounding the recent Quiznos parody.


The BMOrg has put out quite a bit of bluster regarding a certain ad for a sandwich company – one that pokes fun at Burning Man with a satirical caricature of some aspects of the culture (mainly the ones that have received the most attention lately – it comes not even close to capturing the full gamut of Burning Man). And though BMOrg’s intent may be to protect the culture from commodification, their PR department has come off looking pretty foolish for their efforts, with outlets such as the WSJ and the Young Turks satirizing the Borg’s response to this satire. Their response has also had the side effect of generating yet more free publicity for the very ad they were trying to squelch.
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Whether you love the ad or hate it (I thought it was on point and hilarious), it’s pretty hard to argue that this isn’t Commodification in some form. The more difficult question is what (if anything) should the BMOrg, and we burners more generally, do about it?
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BMOrg has opted for the route of legal sabre-rattling, but as Thomas Schelling taught us in his masterpiece ‘Strategy of Conflict’, for a threat to be effective, it must be a credible threat. How credible is the BMOrg’s implied threat within its Cease & Desist letter to Quiznos? Let’s take a look at what the law says.
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Intellectual “Property” – Trademarks and Copyrights
Intellectual property laws bestow certain rights on creators and persons to control how their creations may be used. In the USA, thanks to the American Enlightenment principles of the founding fathers, these rights are based in a utilitarian philosophy which recognizes the tradeoff between encouraging the creation of good works, and limiting freedom of expression. This is interesting, because we can recognize similar tradeoffs between conflicting (10) Principles – for example Radical Expression vs Civic Responsibility, or even vs Decommodification.
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IP protections includes copyright, trademarks, patents, trade secrets, and a few other esoteric and less common constructs such as design patents and character rights. But the only protections relevant here are trademarks  and (maybe!) copyright.
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Copyright law exists to encourage the creation of art and culture, by granting their creator a limited monopoly to make and sell copies of their works, to create derivative works, and to perform or display their works publicly. The ‘limited’ part of the monopoly is important, and includes not only a time limit, but exceptions such as Fair Use.
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Trademark law, at least in theory, is primarily about preventing consumer confusion and protecting the consumer. It is helpful both to the business and to consumers to know that when they buy Spanky®’s meat tubes they are getting meat tubes that have in fact been produced by Spanky®, and not by an inferior competitor that may be using hazardous ingredients, or extruding them from a nearby communal Fleshlight.
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The Burning Man trademark
The BMOrg (or rather, the Orwellian-named Decommodification LLC) controls the trademark for “Burning Man”, allowing them to prevent others from attaching that name to their products and services to prevent confusion and protect their brand. But that isn’t a free rein to control any and every use of a trademark. Imagine if you had to seek permission every time you said to your friend “I’ve got an idea for an art project. Wanna go and photocopy our butts at the local Kinkos?”. Mayhem would ensue. It’s pretty hard to talk about visiting Kinkos without using the word Kinkos. And in fact this situation is covered under existing trademark case law – it is called “nominative fair use” and applies when you are using the trademarked name of a thing to refer to it accurately, there’s no other simple way to refer to it, and you do not imply any endorsement by the trademark owner. These all apply to the Quiznos ad, and so BMOrg’s trademark case is looking pretty anaemic.
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Add to that the fact that parody is typically afforded even more leeway in fair use rulings, and it’s clear the Borg’s case never really had legs. An instructive example is when Mattel sued MCA records, the label responsible for Aqua’s ‘Barbie® Girl’, over their use of the trademark. The case dragged on over 3+ years and several appeals, but Mattel lost every one of them. So the BMOrg were shooting blanks in their C&D, and one wonders what they hoped to achieve?
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The Embrace copyright
Matthew Schultz has also written some heartfelt posts about the exploitation of his work – the Embrace sculpture – in this ad. I really feel for Matthew, and Embrace was an incredible achievement, one that it is hard not to feel is cheapened by such a use. But the law is likely not on his side, and even less on that of the BMOrg. In fact, BMOrg don’t even have standing to sue over the inclusion of Embrace in the ad, because they don’t own the copyright – the Art Grant contract gives them only a perpetual unlimited license, which does not provide the right to sue.
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Matthew could assign them co-ownership so they could sue on his behalf, but that would not achieve much either, because the real problem here is that the use of the copyrighted Embrace design and image here is very likely protected by Fair Use.
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Copyright fair use is determined by a four factor test – Purpose and character of the use, Nature of copyrighted work, Amount and substantiality of portion taken, and Effect of use on potential market.
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Though the commercial nature of the work would go against a fair use finding on the “purpose and character of use” factor, the other three factors are pretty clearly in Quiznos’ favour.
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The use of the work was not only transformative, but parodical (and parody is seen as an exemplary fair use). The substantiality also favors fair use – it was shown incidentally in the background for a split second only. And the effect on the potential market is also in favor of fair use – as there is no secondary market for a work that you burn. It is a somewhat bitter irony that the Decommodification principle ensures that the market for the work was never really a motivation to begin with.
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So on both the trademark and copyright aspects, this is a very tough case for anyone wishing to sue Quiznos. So what should the BMOrg have done?
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The Streisand Effect and the Internet Outrage Machine
Perhaps confusingly, I think the answer is probably very little. The BMOrg doesn’t have the ammunition it needs to make credible threats to Quiznos. And on the internet things like threatening to sue (which is all a C&D letter really is) have a terrible habit of backfiring.
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Trying to bury something on the internet is basically impossible – as EFF founder and long-time burner John Gilmore said “The Net treats censorship as a defect and routes around it“. Without the ability to censor, pushing back on something has the opposite effect to that desired –  it draws more attention to it! This is the infamous Streisand Effect, named for the incident in which Barbara learnt this valuable lesson. With so many tech-savvy folk at the Burn and in burner circles, you would expect the Borg to know better.
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So the best course of action for the Borg was probably to ignore this and let it blow over. Maybe write a little blog on Voices of BM, but don’t go threatening anybody, play it down, and ignore these tacky fuckers commodifying our Burn. Expressing any kind of moral indignation is a lightning rod on the internet – outrage attracts eyeballs, and with them clicks and advertising dollars. So much for Decommodification.
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Community Solutions?
So what is left to us? We can’t rely on some omnimpotent (sic) authority figure to solve this problem for us. Is there anything we as a community can do?
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Sure. Don’t buy Quiznos. Don’t share the ad. That’s easy right there.
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More challenging and more risky would be to hijack their message, and make it work against them. There are some precedents to hijacking PR messages and turning them against their creators. Anonymous is a master of this sort of thing with its constant fuckery with online polls and the like. But even arguable failures like Fitch The Homeless are instructive here. The notion is to co-opt in turn those that are co-opting our culture, and do things they don’t like with their brand. On the FB Victor suggested re-purposing Quiznos subs as buttplugs – this is exactly the kind of message hijacking that might work.

victor facebook suggestion

This can easily backfire though, especially to the extent that this is a brand where “there’s no such thing as bad publicity” is true (the Kardashians spring to mind).
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If we really are impotent to fight this sort of commodification, we might have to just be happy with building our own communities and living within them, and not paying too much attention to this sort of exploitation by external actors. Really that’s what we’re already doing.


Burners.Me:

Just to add further to ShaggyDog’s excellent commentary. There has been an attempt to “fuck with the fuckery” – replacing the audio in the Quiznos ad with “eat a shit sandwich”. This is a more “Burnery” approach, IMO.

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In the final Supreme Court ruling on the Mattel vs RCA Barbie Girl case, the judge ordered the parties “just to chill” . Mattel eventually chose to embrace the Aqua song, using the music in official Barbie TV advertising in 2009.

 

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Uproxx in an article titled Our Nonsense Is Serious! Burning Man May Sue Over Legitimately Funny Sandwich Ad compares the situation to the Book of Mormon. Rather than suing the South Park guys behind the spoof, the church embraced them – advertising in the musical’s playbook, and even sending busloads of churchgoers to Broadway to see the show (if you’re lucky enough to have seen it, you’ll know that it’s harder on the Africans than it is on the Mormons).

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Other Burners have raised the example of another recent parody “Burning Man – The Musical!”, which BMOrg seem to have allowed so far.

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This article at TechDirt Myth Busting – Yes, An Advertisement Can Be Fair Use Parody has some good information and further links.

 

A few choice comments from Reddit:

HotterRod:

The primary protection for trademarks is to prevent consumer confusion. No one is going to confuse a sandwich with an arts festival, so that’s obviously not in play here.

The secondary protection is dilution of the brand (in this case tarnishment: “association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark”), which is covered by the Trademark Dilution Revision Act of 2006. Section 3.b & 3.c explicitly exempts news and noncommercial use from charges of dilution, so the rest of the act covers commercial use. The Act section 3.a.ii defines fair use as:

identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.

Personally I think Quiznos’ ad is obviously fair use and the Org’s purpose here is to scare off other people who might make parodies and don’t have a legal team to defend them. It’s sad that the legal system works that way. 😦

Deckard256:

I think the bmorg is gonna have a hard time on this, and quite frankly I think it’s a bit hypocritical to piss on Quiznos over it. How many parodies of business has burning man hosted over the years? Wall Mart, Costco, Starbucks, jiffy lube, and Wall Street are just a few of the brands major theme camps have parodied. The org should lighten up a bit. If a samich shop can make everyone giggle like this, then maybe they’re saying something about the event that everyone else seems to be clued into. 

Larry Harvey: (not on Reddit) 

“Gift giving networks can produce massive amounts of social capital, and the rate of return on social capital is a lot better than the rate of return on normal capital investment in the market world”

ABurnGuy:

They took that social capital right to the bank!

And now with the hordes, sufficiently convinced by what they read in the brochure about ‘decommodification’, bring the pitchforks out whenever it isn’t Blessed By Larry. Of course they don’t seem to care about it if Larry Likes It.

A dumb internet video? We need the lawyers, they’re profiting off of our brand!

People running for-profit camps at Burning Man itself, directly profiting off of the brand and experience? Oh, just have some token effort to pretend you’re a “theme camp,” it’s okay, commodification is a spectrum!

(Spark BluRays on sale near the door. Make sure the last one to leave turns out the light.)


Now that BMOrg have come out and said “People at our office thought the video was clever and funny” and “we are not threatening to sue Quiznos”, I wonder if the Burnier-Than-Thous will change their tune also? Burning Man was never supposed to be serious.


 

[Update 9/17/15 7:34am PST]

The Voices of Burning Man have finally spoken. It seems they have a brilliant sense of humor, and really enjoyed this funny joke. It’s just, they have to stick up for the poor artists who got no compensation for someone else making money from their work.

As creative and funny as it was (we had a good laugh, we’ll admit), clever unfortunately doesn’t trump our commitment to protecting our community from commercial exploitation. We’ve been fielding anguished calls and emails from participants and horrified artists whose creations were used in the video without permission, a number of whom who have issued take-down requests of their own accord. We can laugh at ourselves. But we’re not laughing when a corporation exploits the artwork of others under the guise of poking fun at our event.

Brings to mind Green Tortoise, the exception that proves the rule of how they protect our community from any commercial exploitation.

Halcyon aka Pink Jesus has weighed in on QuiznoGate (I was calling it SandwichGate to avoid promoting the brand). Facebook users can follow his new “happy happy joy joy” page Pink Hearted at Burning Man and Beyond. Even BM’s biggest fan is outgrowing the NV Burn…

 

85 comments on “Suing For Your Supper [Update]

  1. I think that this was not an attempt at satire at all but rather a direct poke at BMorg itself. I think that a couple of veteran Burners, one at Quiznoes and one at Fox got together and hatched the Greatest of pranks designed to tweak the BMorg in a way that no matter the legal outcome cannot be removed from peoples memory.
    Touche Motherfuckers!!!!!
    Masterfully piece of work in the true spirit of any creative Burner…….
    Kudos my friends ,whoever you are!

    Liked by 1 person

    • If you look at their other parodies you can see that they are a very talented group. This one is not unique. It is the sort of thing we saw on SNL decades ago.

      As my edit shows, the “commercial” aspect, their sponsor, can be removed and the the piece is actually better.

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    • It’s freaking hilarious, whatever the backstory. And now the official BMOrg position is that it’s funny, and they never meant to sue that was just a media invention; so all the Burnier-Than-Thous who used to hate on it have permission to like it now.

      Liked by 1 person

      • But they did that in a very patronizing/parental correction manner: “So while we appreciate the creativity, we sure do wish it wasn’t attached to a commercial product.”
        http://blog.burningman.com/2015/09/tenprinciples/breaking-shameless-marketers-are-shameless

        Sorta misses the whole context and what lets it exist, like: “While we like the NV burn, we sure do wish it was easier to get there and not so dusty.”

        The comments also uncover some old Borg dogma that they are backtracking on, like citing artists and photographers, which used to be a big NO before the sellout and the $20 million overhead and profit to do a $10 million event.

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      • BTW, that blog had this great little set of comments, including Sippy Cup’s description of the BRC airport action…

        Sippy Cup says:
        September 17, 2015 at 8:09 pm

        “……. clever unfortunately doesn’t trump our commitment to protecting our community from commercial exploitation.” How about all those plug-and-play camps? Our community is being exploited by for-profit commercial vacation enterprises and BMOrg supports this commercial exploitation by granting theme camp placement, tickets and garnering fees for commercial flights into the playa airport. All of those people who create the airport and tend it are VOLUNTEERS and yet these companies are PROFITING from Burning Man and taking up prime real estate and tickets for their ‘sherpas’ who wait hand-and foot on their customers. They are not burners, they are customers and employees on an all-inclusive vacation package. It’s not Quiznos, but it certainly goes against the decommodification principle. Talk about shameless flouting of your own principle, BMOrg.

        Will Chase says:
        September 17, 2015 at 8:29 pm

        Well, you’ll be happy to know that we are doing something about turnkey (aka plug and play) camps that erode our culture. We already did, in fact. Here’s our policy for turnkey camps: http://blog.burningman.com/2015/07/tenprinciples/heres-what-burning-man-is-doing-to-end-turnkey-culture/ and how we handle outright concierge services: http://blog.burningman.com/2015/05/news/kicking-concierge-caboose-in-black-rock-city/

        Nomad says:
        September 19, 2015 at 7:12 am

        Will, how did all that work out? Did landings at the BRC airport fall off? How about the traffic from the airport to the (non-existent) CCamps?

        I mean really, how do you fly in without having someone drive all your stuff there? You can’t spend a week in BRC with just a suitcase or two without some help.

        Sippy Cup says:
        September 19, 2015 at 4:36 pm

        Thank you for the response and links, Will. I read some of those before the burn this year and was hopeful that the issue was being addressed in action as well as in words. It seems to be a work in progress that I hope will continue. My own experience was in talking with a long-time airport volunteer who comes in several times before the event to survey and create the airport. His own words to me were that it used to be some burners with small planes would fly in and many would also gift rides to fellow burners. Now there are many, many commercial flights with entitled passengers being overly upset if there is a wait to get on-playa and *gasp* they are made to wait in the sun because the shelter is too small to provide enough shade for all of them.

        I did a little volunteering so was permitted EA on Saturday and almost camped right next to a PnP camp. Luckily some friends were already set up and warned that their generators were running 24-7 while the “sherpas” set up the camp. We moved further down the road and, sure enough, we were told by less fortunate campers that those generators were running the entire burn to provide A/C for the individual little white tents which continually pumped A/C into them day and night. We also noted heavy equipment on that Saturday and Sunday used to set up the camp and I can only assume that it belonged to BM. I don’t know how that works, whether a camp pays BM or if it’s a matter of who you know to get use of it.

        The camp had two gorgeous art cars with seating for about six, so needless to say, no one outside their camp were gifted rides that I am aware of. The driver of one of the cars told us he was to be paid $7000 by the owner of the camp to build the care and drive it around for the week. (He noted he had not been paid yet.) On the last Monday he commented that now was “his time” to do what he wanted.

        So, the issue remains of the camps getting placement and tickets for workers who are being paid to be at BM to build and support these PnP camps. There is also the even larger issue of companies profiting from providing these all-inclusive vacation packages to their customers and fees being collected by BLM and Burning Man for airport privileges and who knows what else.

        So, yes, thank you for listening to the not-so-privileged Burner about our concerns for upholding the 10 Principles. We love our neighborhood and are accustomed to feeling welcomed by all camps around us but this corner of PnP was a bad fit for us. As a 10-year burner, I can certainly appreciate that things change and this still was one of my best Burns ever, but I hope you will continue to keep these profiteers from stomping on our beautiful culture and principles. Thank you.

        Like

  2. Hey kids! Just saw a great feature-length parody of the NV burn. Here is the trailer:

    The sad part is the Jodie Foster/Marion figure decides to just give up near the end.

    Lots of tech product placements. This time you have Sony to thank for bankrolling the work.

    Like

  3. *THE BURNING MAN SUB*
    Let’s take some grass roots action, like the guy with pink hair suggested.

    As suggested by ABP, let’s all decide on what a “Burning Man” sub is. So far: “grilled cheese, much bacon, and turkey.” Fire-grilled, of course.

    Any suggested improvements?

    We need Quiznos to know who supports them in their Toasty.Tv satire channel. If hundreds of people start ordering a “Burning Man” sub, corporate will know they did good.

    Liked by 1 person

  4. My belief is the BMOrg response towards the parody shows the manner of which Burning Man has changed from an event of the counter culture, towards an event, and a culture, of a corporation. The Quiznos parody was most brilliant, it was a parody the Cacophony Society might have created and, of which, been most proud, or, perchance, of the Billboard Liberation Front, of which, they were the culture of Burning Man for numerous years.

    Perchance, the proper response of the BMOrg, in the place of shamelessly making attempts to shame them, and construct a human corporate jail, and making attempts to desire their cult members loyal believers to be outraged in due of the most brilliant parody six seconds of utilization of the IP of Decommodification LLC four seconds of a Quiznos coupon, and desire their loyal believers to term it a shit sandwich, the BMOrg might have stated of the parody is brilliant, the parody is most worthy of our beginnings within the Cacophony Society, we are not of the ability to halt the parody in due of parody is a most fair use of our IP, and embrace the parody with humour.

    What might be the proper response of Quiznos in due of the cult members loyal believers terming Quiznos a shit sandwich? When Jon Stewart termed Arbys a shit sandwich, Arbys responded in a most humorous manner. Arbys sponsored the ending show of Jon Stewart, and Arbys, at present, sells a Jon Stewart sandwich, hidden from their menu. My belief is it might be most awesome might Quiznos sell a Burning Man sandwich, hidden from their menu, of grilled cheese, much bacon, and turkey, in due of the response of the BMOrg turkeys.

    Liked by 2 people

  5. I vote that we call it what it is, people: heckling. Public heckling of the Borg. With a little profit motive, which is why there was a budget for it. Exactly what the Borg is doing except more overt. Just my two cents 🙂

    Liked by 2 people

  6. The propaganda video by J Stein says it’s 13 minutes long but feels like 13 hours. Can’t help but wonder if there’s anybody, outside the borg corporate boardroom, that takes this guy seriously. ‘Everything is great at BM, BM will change and save the world, you had a transformative experience filled with love and light, it all depends upon where you place your focus, blah blah blah’. If there was such a thing as a bullshit meter it’d be spinning like crazy.

    With this amount of brown nosing I’m sure he has no problem getting tickets.

    Maybe in stead of Pink Jesus he should be called the ‘Pink Ass Kisser’ or ‘Tokyo John’.

    Liked by 2 people

    • Another word for bullshit is “fertilizer.”

      That video was only 1 clip from a 1 hour podcast, actually! Consider yourself spared. (My last name is “Styn” btw.)
      I didn’t say everything is great. I said that thinking BM sucks because parts of it suck is a weak and irresponsible perspective. I put a huge amount of effort into trying to bring to Burning Man what I feel it needs.
      Complaints without action are boring.

      Like

      • “I didn’t say everything is great. I said that thinking BM sucks because parts of it suck is a weak and irresponsible perspective.”

        The problem is that it is getting worse: Bike thefts are up. Arrests are up as are unlawful LEO actions to hassle burners. Getting tickets is harder. The entrance delays are horrible. These are all real issues that face all but the 1% who seem to constitute the BoD and those they care about.

        “Complaints without action are boring.”

        Well, my action has been to take my theme camp elsewhere, avoiding ALL these issues. Is that what you want us to do? Or are we supposed to just shut up and accept the increasing burden put on the burners? After all, what other actions are available to burners? We need bikes. We cannot control LEOs who go for drugs as an easy target compared to participant safety from violence. What control do we have over the entrance delays? Other than joining you in the suck-up game, to the detriment of others, what can we do about tickets?

        These are all problems that fall in the lap of the Borg. And they have carefully structured the organization to isolate themselves from the burners. The decision-makers have not changed or expanded to include regular burners as representatives, nor can they be found as a significant let alone powerful contingent on the BoD.

        The two large participant-sourced stone-soup organizations I am a member of thrive on and depend on volunteer participants as ALL the decision-makers. The salaried staff work for us, not vice-versa. And we do some very serious stuff.

        Instead the Borg has decided that they will take a top-down approach, and rely on pressure and control of information to “manage” the volunteers who literally make the event. Can you cite any other long-term participant-sourced organization where a select few make all the decisions with no explicit enfranchisement of the participants?

        How is saying “Complaints without action are boring,” anything but an insult? What “action” to you suggest? Can you cite action examples that address key issues for all burners and not just some de minimis side issue?

        Like

        • Sorry for that to come across as an insult. But I don’t think I was the one that set the tone for our exchange.

          Challenges about the crowds (tickets, delays) are valid, and taking your energy elsewhere is an absolutely valid course of action.

          Like

          • So, in fact you can cite no “actions” that the burners can take to address these issues? That makes your invocation, “Complaints without action are boring,” at best misleading, and at worst pejorative.

            “Challenges about the crowds (tickets, delays) are valid…”

            Yes, the Borg is “challenged” in many ways. I would ask how that is coming, but we know from two weeks ago. BTW, do they have volunteers change the drool cups, or is that also a salaried job?

            “…and taking your energy elsewhere is an absolutely valid course of action.”

            Gee, really? Sorry, but no, I am not going away. I have invested time and money over many years into making Burning Man what it was; seeing a wrong, I will call it out in the most productive manner available. Until the Borg decides to have regular burner representatives (who have done theme camps, MVs and playa art) in their midst and on the BoD – real people we can reach out to – the only channel is through social media. Maybe your real market is people who don’t have web access?

            In the mean time, the people who come to the NV burn will more and more be less and less, and I don’t mean in numbers.

            Liked by 1 person

          • If bike theft was troubling me, I would use a lock. But I really have no desire to debate you and go through your complaints point for point.

            I thought *you* said, “my action has been to take my theme camp elsewhere.” Sorry I misunderstood your thoughts and your actions. I regret addressing your critique of me. I’m fine if you think I’m an ass kisser. And I wish you well in your work to improve things.

            Like

  7. In an alternate reality, where they are not so psychologically dysfunctional, the Borg would celebrate the creativity of the piece, much as I am sure 20th C Fox is doing. Rather than funneling the added attention into their dysfunctional NPD model, the Borg could use it to expand the interest and self-reflection of the burner community. Not only would they take the opportunity to learn how they could improve, but the video could piggy-back on the Quiznos social media to expand the burner culture. But such expansion is really not on the Borg agenda, because they are more into control than drawing from the efforts and creativity of the burners.

    Liked by 1 person

    • Just think of what you could do with this communication channel to expand the Burning Man culture and message. Amazing isn’t it. What is also amazing is that the only thing the Borg could think of is to call their lawyers = wrong BoD, wrong people in charge.

      Pretty sure they really don’t have any idea of the Burning Man magic they claim to know. Any good burner could go somewhere with this video’s opportunity for outreach. Imagine how it could mobilize the community. So much potential. …So sad.

      Liked by 1 person

        • At first I was confused about the community response, but then I realized that was the LOYAL community response. The Borg’s changes to the event since the sellout, particularly utterly sacrificing the interests of the burners, have winnowed down the supporters. At one time they were the whole burner community. But the free-thinkers and those who don’t need or have gotten past the need to be led, have disconnected from the abusive NPD cult culture. As a self-selection process, it is now the zealots that are left – they are the only ones who can put up with it.

          I think the “shit sandwich” version of the video is interesting. I find it crude and only marginally creative. It is certainly hostile with a negative vibe. Compare that to mine, where I just removed the bad parts, which were largely out of place anyway. In fact it is telling that Quiznos and sandwiches are not part of the “story.” That is why this is such a missed opportunity. I am sure the video could not have been made without sponsorship, so I take the whole Quiznos/Toasty.TV thing as a necessary evil. It’s like when I watch the PBS NewsHour on my DVR, and skip past the “commercials” at the front.

          If the creative burner community was on top of this, they could easily make a derived work, replacing the commercial 10 seconds with other material to suit their agenda, or just have fun with it. You know… be creative!

          Liked by 1 person

  8. “IP protections includes copyright, trademarks, patents, trade secrets, and a few other esoteric and less common constructs such as design patents and character rights.”

    You left out “proprietary” claim. In the 1980’s Wang Computers claimed their word processor network interface was proprietary, and successfully sued other manufacturers to prevent them from making compatible hardware. Try to ask them how that all worked out.

    Liked by 1 person

  9. If you take out 10 seconds of the 2:45 video, the remaining 2:35 hangs together. Check this link: https://vid.me/0qwe (Sorry to the comments below where I was unsuccessful trying to get the video to show in a window.)

    So download and use that version if you want a non-commercial version of the parody. The sandwiches are a completely removable element. And if you watch it and cannot tell the difference, QED. The point is, absent commercial content, it is a nifty little short.

    After all, it’s not like a REAL commercial endorsement…

    Liked by 1 person

    • You’re correct, take out the part where Quiznos is marketing sandwiches, and it’s no longer a commercial. Uh, was that your argument? Make it something different…and it’s different? Take out the part where Dick Cheney shoots his friend in the face, and it’s just another hunting party. Etc…

      Like

        • Come on, I know you’re trying to be witty, but that’s a false equivalency. The purpose of the video was to sell Quiznos sandwiches, so no, I can’t ignore the 10% that is the very reason for this video’s existence. I CAN ignore the 10% of Burning Man that sucks, because Burning Man exists and is (mostly) amazing despite that 10%.

          Like

          • No. Maybe you have not written and produced film, but I have. The purpose of the video was NOT to sell Quiznos sandwiches, any more than the purpose of the PBS NewsHour is to sell BN Rail. That is proved by my editing where removal of the sandwich stuff showed that it was not integral to the story – hell, it was not a part of the plot whatsoever. If they wanted to make it to sell sandwiches the plot should have depended at some point on sandwiches, which COULD have been done.

            Quiznos is simply the sponsor. Once you remove their product placement, nothing is lost, like all product placements in movies or TV. In fact, I would commend them for not putting in a 30-seccond Quiznos pitch – a real commercial – at the start or end. Could have easily been done, but they did not.

            Financing creativity is not easy. The executive producers of Toasty.Tv have done a great job of financing such good creative work with only very obvious and overt product placement to get their backing. A large part of what makes it work is the obvious respect for the viewer’s intelligence, and ignoring the inevitable suggestion that the shorts include an actual commercial. All in all, brilliant work.

            It could be far worse…
            http://articles.latimes.com/1996-01-23/entertainment/ca-27536_1_masterpiece-theatre

            Liked by 1 person

          • An appeal to authority, ok, that’s logical fallacy #2 so far in this thread. So, video expert, by your reasoning, the famous Mentos commercials were not, in fact, commercials for Mentos, but simply delightful if somewhat unnerving vignettes about ingenious, vaguely European youth overcoming obstacles in common social situations, because if you remove the part at the end where they hold up a roll of Mentos, the story still stands.

            Sure, funding is tough in the arts, but a product placement is a product placement.

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          • No, not at all.

            The Mentos commercials are commercials. If you remove the use of Mentos, the stories have no story. There is a direct implication that the product helps the situation, or at least validates an attitude, of an otherwise uninteresting or silly event.

            As I showed, when you remove all references to Quiznos and sandwiches, the Toasty.Tv short is unchanged. In fact, it’s better. It’s obvious that they were product placements, that makes the story all the better since they can be removed.

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          • Where did I suggest “An appeal to authority?” You mean the Rangers? That was just to have a third-party witness that would not disappear. That’s why I would video them, too. The videos, like Nixon’s tapes (using Kennedy’s equipment), remove plausible deniability.

            The game the Borg is playing is that, “We did not know! What an outrage!,” or “We have conflicting reports (from people who give us money) as to what happened.” The video removes that argument when it includes a report to a Ranger. They have to up their game, saying how such things should be reported if it’s not the Rangers’ job.

            Right now, they have the burners chasing their tail on all claims, letting the Borg dance around all claims and inquiries.

            Liked by 1 person

          • An appeal to authority is a logical fallacy with the following form:

            “Person A is (claimed to be) an authority on subject S. Person A makes claim C about subject S. Therefore, C is true.”

            I was giving you shit about your claim of expertise on video, and how that somehow furthers your argument. It doesn’t. For the Mentos commercial, take out any mention of the product, and you have a person getting a bright idea about how to overcome some obstacle. There are many other commercials where the product mention is even less germane to the content of the commercial, yet it’s still a commercial.

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          • You proved my point. If you take out the 10 seconds of product placement, like I did, you don’t have a commercial, you have a parody. Thus, it was not a commercial to begin with, it was a parody. Show the expurgated short to anyone and they would see a parody, not a sandwich commercial.

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          • So your point is: take the original thing and make it a different thing, and it’s no longer the original thing. OK, applied to the video at hand, the original thing is a commercial, the thing you made by taking out the product placement (the very aspect that makes the original thing a commercial) is different and no longer a commercial.

            Looks like we agreed all along. The thing Toasty.TV made is a commercial, thing thing you made is not. Cool.

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  10. What if the content of the video was kind of lame, but was still a commercial for Quiznos, would everyone here still support it? Does it get a pass just because it’s hilarious, and also, a commercial for Quiznos?

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    • Close… It was lawyers JUSTIFYING their $4 million/year.

      I imagine there might be some pressure on line-items in their annual budget now that they are reaching the maximum ticketing revenues. Could be that they are hoping for licensing revenue from the next “commercial” (sic).

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      • Kudos to Burner ShaggyDog for this awesome post.

        They are not reaching their maximum ticketing revenues. I am most curious in regards of disclosures, perchance, in regards of licensing revenue in due of images of art at Burning Man, upon the 2014 990 form of the Project, due in 2015 May November, and whom might obtain the licensing revenue, of the art grant contract giving them an unlimited perpetual licence in the manner Burner ShaggyDog states, and Decommodification LLC owning the Burning Man IP.

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  11. Gonna disagree, not a lot of Quiznos backlash, but a lot of clever, jaded, deviens drole, cheeky sarcasm and snark directed up, out and back on the whole event, theme, dream, drama and ream….the backlash, she can be quite ze bitch, yes…

    Liked by 1 person

      • Disagree that Quizno’s will take backlash (As opposed to receive kudos) from this campaign. I disagree they will suffer, think it adds luster to their brand, and is a brilliant piece of semi-guerilla marketing…

        Liked by 1 person

          • If you are parodying another brand, even a competitor, let alone a non-competitor, you don’t need permission. It might be appropriate to get it but you don’t have to.

            Liked by 1 person

          • Quiznos: “Dear BMOrg. We would like to make a video taking the piss out of your event and the radical self-entitlement of modern Burners. We will only have the barest minimum of commercial identification in it, and we will respect your trademarks in the category of Arts Festivals. We will put our logo in it for less time than Fest300 does in their drone rules violation video commercials. Would that be OK?”

            BMOrg: “Dear Quiznos, yes that would be totally fine, please go right ahead”.

            You really think that is what would happen, JV? Do you think stand up comedians ask Bill Cosby for permission before they tell jokes about him?

            Liked by 1 person

          • There is a difference between using a brand in a comedy act, and using a brand to sell a product. One could argue that the comedy act itself is a product, but that’s a fairly cynical view of performance art, and art in general, and one that hasn’t held up in court.

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  12. They don’t go after something like the Burning Man Musical or the Hitler Youtube videos, because those are not commercials for a product, they’re just satirical works. That’s what’s bugging me about a lot of the criticism of the BMORG’s response. It’s being spun as the BMORG being pissed about the satirical content of the ad, which is not it at all.

    Liked by 1 person

    • How can you say the Burning Man Musical is NOT a commercial for a product? They are trying to create a musical that will be produced (possibly on Broadway – although given the quality I expect not) and they are raising money on indiegogo for that purpose. It is a naked commercial for a product, even if it isn’t an already successful product. That MIGHT be the difference, Quiznos is a huge corporation with much current success, but don’t say that the BMM is NOT commercial because it most certainly is.

      Liked by 1 person

    • “It’s being spun as the BMORG being pissed about the satirical content of the ad, which is not it at all.” > And just how do you know that? Did they discuss it with you at the last group therapy session?

      So you say they are pissed about the 10 seconds of ad and not the other 2 minutes and 30 seconds of parody. I am proposing that’s ” is not it at all.” Instead, their NPD buttons have been pushed, not only for lack of control, but making light of their cult,

      #death2thenonbelievers

      Liked by 1 person

  13. I thought the ad was spot on, nailed it. That being said, I think the BORG should let sleeping dogs lie. They will just end up looking hypocritical, with the plug and plays, the big name dj’s, high profile art cars… Burning Man is becoming just a dusty Coachella, there is plenty of commodification already going on. If they want to take a stand, start by looking in the mirror.

    Liked by 2 people

  14. I think the reason that the BMorg hasn’t plowed in on the Burning Man musical is that it is SO awful that they don’t think anyone will take it seriously (which I certainly don’t and I spend a lot of time involved in musical theater). Quizno’s on the other hand is a huge national (multinational?) corporation with immense impact. Its ad will be seen by millions (the BM the Musical video will be lucky to be seen by thousands and most of them will go “ho hum” or LOL). However, as noted, the Mormon church got it right on the Book of Mormon, and in the end even Mattel used Aqua’s song to help promote Barbies. Maybe Burning Man should invite Quiznos to sell sandwiches at the event next year 🙂 (Okay, JUST KIDDING!)

    Liked by 1 person

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