Thanks very much to Burner ShaggyDog for this guest post about some of the legal issues surrounding the recent Quiznos parody.
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.
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.
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…
20th Century Fox has a new film coming out “Maze Runner: The Scorch Trials”. Quiznos makes sandwiches. Put two and two together, and what do you get?
Burning Man 2.0. When the Shark ate the Subway.
Here’s the “offensive” commercial:
Taco Bell did it first. Without any known repercussions. So why wouldn’t their competitors try it too?
BMOrg are pissed. Could it be because these guys hit a little too close to home, and somehow nailed EXACTLY the problems happening with our culture now? You know, the ones BMOrg either deny exist, or tell us they’ve listened to us and completely solved (while actually doing nothing), or if there is any acknowledgement, blame on us?
Laugh at yourselves, Burners. Because some of this is really freaking ridiculous. A unicorn car that shoots fireballs? Is that somehow not ridiculous?
Some choice quotes:
“Don’t you understand?
How to look cool on Instagram?”
“They lied to us. They said it was an anti establishment society based on radical self expression. Now it’s become a place for rich people to tick off their bucket list.“
How does BMOrg respond? “Ha ha, yes that’s funny, everything we do is just an ironic prank, like all the Satan/Hellco stuff, or being the first org since the Nazis to officially employ a Minister of Propaganda?”
Nope. Threats of lawsuits. Quelle surprise.
From the Reno Gazette-Journal:
Burning Man isn’t laughing at a new Quizno’s advertisement.
The toasted sandwich company published a parody video, “Out of the Maze and into the Playa,” on YouTube earlier this week, a day after the weeklong utopian arts celebration in Northern Nevada’s Black Rock Desert concluded on Monday. The plot sends the characters of the “Maze Runner: The Scorch Trials,” a not-so-well reviewed science fiction thriller to be released later this month, to Burning Man as a test of character…
Burning Man takes issue with the clip and is considering legal action, not because of the mockery it makes of the more than 70,000-person annual event but because the video is theft of the event’s intellectual property, according to Burning Man spokesman Jim Graham.
“We are pretty proactive about protecting our 10 principles, one of which is decommodification,” Graham said. “We get a quite a number of requests each year from companies wanting to gift participants with their product or to capture imagery or video of their products at the event, and we turn them all down…We’ll be coordinating with our legal team to see what action we can take…Burning Man’s busiest time of year, when it comes to defending decommodification, is immediately after the Burn, Graham said, when companies and individuals attempt to market their products by paring [pairing] them with Burning Man content.
…Burning Man has taken it to legal action in the past…Burning Man won the lawsuit against Girls Gone Wild, Graham said…Burning Man makes an effort to support certain businesses that serve the Burner community, many of them Reno-based, by promoting them in one of Burning Man’s annual newsletters each year before the event.
It’s not Commodification when BMOrg does it. Still, I’m all for supporting local Burner-friendly businesses, including the 100+ vendors licensed to sell stuff at Burning Man. Quiznos seems pretty Burner-friendly to me; clearly, they understand where our culture is at in late 2015.
Burning Man had not taken any legal action against Quizno’s as of Thursday evening.
I find some chuckles in the empty threat of the $30 million
charity tax-exempt non-profit BMOrg suing the $8 billion phone hackers over at Rupert Murdoch’s News Corporation, or the $14 billion hedge fund behind Quiznos. To make their case, Larry and Marian would have to swear on the Bible that parody is not a legitimate art form and must be censored and suppressed. Then they would have to prove how their sold out event was financially harmed by millions of dollars worth of mainstream media advertising – while the other Fox product, The Simpsons, can parody Burning Man and that’s totally fine.
Personally, I think this Quiznos ad is brilliant. Timely. Poignant. Very funny. #nailedit!
“The course of this festival will determine the course of humanity. Until next week when you return to your desk jobs”
If you can’t laugh at yourself, who can you laugh at?
Perhaps this is karma for all the Satanic pranking of Burners by BMOrg lately, such as “bugs are here and they’re everywhere and they crawl up inside you and bite” at burningman.com, or “don’t share photos that we share on social media, that’s why we have teams of lawyers”; or lining up at Will Crawl for 8 hours with no shade or water to pick up your $400 tickets; or the idea that we are saving the world through a dusty rave; or that we are supporting the arts by underpaying artists and screwing them in contracts and saying they shouldn’t ever sign their work. Even the theme this year was that we’re all chumps, suckers, and rubes, while they’re hucksters and carny barkers.
It sure has seemed like they’re laughing at us in recent years. Well, now the whole world is laughing at them. Let’s see how they take it. So far, not so good.
Given the recent mass media obsession with Burning Man, this lawsuit (were it to ever eventuate) could rapidly become the biggest story in the world – a convenient distraction from the real current affairs of global economic meltdown, Hillary keeping State Department secrets on a home-brew email server shared with her tax exempt non profit, refugees who are all young men of fighting age storming Europe, and Israel/US lining up against Russia/Iran in Syria over gas pipeline routes.
BMOrg’s usual trick of going to the media to fight their battles against small town judges and sheriffs, ain’t gonna work against the world’s biggest and most powerful media group and the world’s 13th largest hedge fund.
Chocotacos just seem so quaint these days.
[Update 9/12/15 1:58am PST]
Quiznos is a privately held company with revenues of about $400 million and more than 2000 stores around the world. It is the #2 sandwich maker in the US, after Subway. Since 2012 they have been majority owned by Avenue Capital Group, an international investment firm with 200 employees and offices in 8 countries. It is the 13th largest hedge fund in the world, 15% owned by Morgan Stanley, with $14 billion assets under management. Chelsea Clinton worked there from 2006-2009.
Quiznos has a long history of legal battles, they are no stranger to court and seem to have used lawsuits for marketing before.
[Update 9/12/15 3:10am PST]
Thanks very much to Nomad for finding this. Toasty.TV is part of a broader Quiznos parody marketing campaign.