Burning Man's Intellectual Property Terms and Conditions

By Jacob R.

   Burning Man Organization (BMO) describes its annual, weeklong experience in the Nevada desert as an experiment in radical self-expression and self-reliance. For most Burning Man participants (“Burners”), this means taking a short break from the everyday routine of working as a lawyer, barista, or any other profession that does not completely fulfill the human desire to dress in steampunk attire, build post-apocalyptic floats, and cheer on the burning of a large wooden effigy. However, the actions of a few who exploited this safe space for radicalism, provoked BMO in recent years to enforce a strict contract policy to protect the privacy of its participants and to promote the creative goals of the festival. In effect, this policy limits dissemination of photography and video created at the festival and only until a recent change in its language, restricted participants’ traditional intellectual property rights.

           

   BMO's old terms prior to 2011, permitted the display of photographs and videos taken at the festival by participants for personal use, but restricted any third-party display or dissemination of the works. It achieved this by requiring participants to automatically assign copyright of photos or videos taken at Burning Man once any of these works were used for any other purpose than strict personal use.  BMO terms also reserved a right to prevent any videos or photographs of the festival on any public websites if it objected. An advantage to this policy of automatic assignment is that it allowed BMO to use the DMCA takedown process to censor Burning Man images on the Internet. This provides a much quicker route to censorship than spending time negotiating publicity and privacy rights claims as the basis of a takedown.

   Curiously, the old, strict policy additionally prevented ticket holders from using the Burning Man trademark on any website or making any trademark fair use of the mark. Meaning that facebooking, tweeting, and blogging the Burning Man name would be considered a violation of the BMO policy.

   While the limitations of traditional intellectual property rights may seem harsh in BMO's pre-2011 policy, there are legitimate reasons why BMO restricts public Internet access to images of the festival. In the late 1990's and early 2000's over the course of five years, Voyeur Video Inc. videotaped twenty-seven hours of nudity at Burning Man, selling the tapes for $29.95. BMO responded by suing for trespass, invasion of privacy, and publication of private facts. Voyeur Video's exploitation of the radical self-expression threatened the ideals of Burning Man, alarmed the community of Burners, and resulted in the creation of BMO's strict intellectual property policy.

   Recently, BMO changed its policy for the 2011 festival and slightly loosened its restrictions on the dissemination of photography and video from Burning Man festival. Now, ticket-holders and BMO share joint ownership in photographs and videos taken at the festival. Therefore, BMO can still use DMCA takedown methods at will to enforce its censorship of the images of the festival, but participants retain certain rights to control their works. Ticket-holders possess the right to share their works under a creative commons Attribution-Non-Commercial-Share-Alike license. This allows sharing and derivative uses of works so long as they are not for commercial purposes. Also, BMO changed its restrictive language regarding trademarks to permit its ticket-holders to make fair use of Burning Man's trademarks.

   Copyright law is justified in the Constitution as a means to promote artistic expression by creating an incentive for artists to acquire a property right in their work for a limited period of time. Interestingly, BMO also seeks to promote expression in its intellectual property policy, albeit a “radical self-expression,” by protecting its participants from being viewed and judged from the world outside of Burning Man. The type of radical, spontaneous behavior promoted by Burning Man, such as participants running around the desert naked with glitter paint and a ski mask, differs from the type of fixed, tangible expression protected in contemporary copyright law, such as a painting or a photograph. Therefore, it makes sense to adopt a policy to protect this form of radical self expression that competes with copyright law. However, the Burning Man community should continue to seek an acceptable balance to its policy of protecting its ideals with any desire participants may have to distribute expressive works of photography and videography created at the event.