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.
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?
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.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
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?
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.
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.
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.
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?
Sure. Don’t buy Quiznos. Don’t share the ad. That’s easy right there.
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.
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).
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.
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.
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).
Other Burners have raised the example of another recent parody “Burning Man – The Musical!”, which BMOrg seem to have allowed so far.
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:
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. 🙁
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”
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…