Burning Man Responds to EFF over fair use and photo rights attack

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155 Responses to “Burning Man Responds to EFF over fair use and photo rights attack”

  1. Ernunnos says:

    “We’re different!”

    “No you’re not.”

    There’s already an established system for dealing with commercial photography and brand dilution. It mostly works. A little bit – ok, a lot – of dust and some nudity doesn’t change that.

  2. Anonymous says:

    Burning Man likes to pretend that it is a community and one that would protect its attendees/members. However, the fact is, as many have astutely pointed out, that the Burning Man corporation is exploiting its attendees/artists (and for those who are unfamiliar, it is a wolf in the sheep’s clothing of a community — something it was a long time ago and participants would like it to be now). In Andie’s article, she seems to be saying that Creative Commons wouldn’t work because Burning Man couldn’t make money off of your art. And that would really suck. I mean, you pay $210-$360 to give BM Org your IP rights. For art that is burned/destroyed at the event, the photos are all that is left. I think what is more concerning is that if Burning Man had different lawyers or the inclination, these surrendered rights could be taken much further. I think IP-loving artists (of all kinds, not just the professionals) should stand up for themselves and have their own separate party one year in lieu of attending Burning Man and hit the Burning Man corporation where they are most concerned — in the pocket. That will likely be the only thing that causes them to reconsider their greed-motivation mandatory theft of IP rights (mandatory theft vis a vie you have to agree in order to attend the event..).

  3. Ruggie says:

    Well I’ve read over both the EFF post, the BMO response, and all the comments on this page so far. And I must say, from the stand-point of a someone who is thinking about going for the first time NEXT YEAR (I have neither the funds nor the time to do it this year)…BOTH SIDES of the arguement has merit.

    I will say this though, whether or not they may be a “benevolent orgaination”, show me some other orgainaztion who would take the “extreme power-grab” measures BMO is doing, and do what they can to NOT USE IT!!!

    I entrust power to those who don’t want it, because those who don’t want it are less likely to exercise it, and therefore, less likely to abuse it. They are even open to people suggesting how this policy should be changed!!!!

    On the otherhand, other comments above mine have stated that the people behind BMO are human, and are subject to human nature, and I can understand their concerns.

    So here is a compromise that I suggest would benefit all involved:

    First, my “loose” attempt at legal defintions (considering the fact that I ain’t a lawer, and since many in here are concerned with legalites)-

    “The event, hosted by Black Rock City, LLC (Also referred as ‘BRC’ or ‘BRC, LLC’) from 12:00am PST August 31, 2009 to 11:59pm September 7th, 2009 shall be referred to as “Burning Man” or “BM” or “The Burning Man Event”.

    “The people attending Burning Man, whom having purchased a ticket for The Burning Man Event, shall be refered to as ‘Attendees’

    “All photographs and/or videos taken at Burning Man, shall be referred to as ‘Content’, ‘Images’, or ‘Videos’

    “Attendees who create Content shall be referred to as ‘Producer(s)’.

    “Attendees who have their Images or Videos taken by the Producer(s) shall be referred to as ‘Subject(s)’.

    “When needing to refer to both the Producer(s) and/or Subject(s), shall also be referred to as ‘Party’ or ‘Parties’.

    “Any contract or agreement made, whether it be written or video recorded; of sound mind and body; not under any influences of drugs, alcohol, or threats; not under any legal guardianship; or not under legal age to make such contract or agreement, shall be referred to as ‘Formal Agreement’.

    “Commercial-Use shall be described as usage to obtain profit, monies, or any other form of compensation.

    “Non-Commercial-Use shall be described as usage to not obtain profit, monies, or any other form of compensation.”
    —–
    Now my attempt at placing copyright properly -
    —–
    “BRC, LLC holds the copyright of all Content made at Burning Man and is BRC, LLC property unless the following condition is met, in which case, the Content shall be the property of the respective Producer(s) and Subject(s):

    ‘Both Parties have made a Formal Agreement; before, during, or after The Burning Man Event; to how such Content can be displayed, distributed, showcased, or otherwised handled for Non-Commercial-Use. If such Content contains copyrighted logos or registered trademarks of BRC, one or both parties should also make a Formal Agreement with BRC, unless such logos or trademarks are removed from the Content before being distributed, showcased, displayed, or otherwised handled for Non-Commercial-Use.’

    “Commercial-Use of such Content is against the spirit of The Burning Man event, however, should both Parties make a Formal Agreement on Commecial-Use, both Parties must contact BRC, LLC to make a Formal Agreement for such use.

    “If there is no Formal Agreement from both Parties, BRC shall be given Power Of Attorney to either Party (or both Parties if both Parties are in agreement) of the Content if either Party or BRC discovers undesired or Commercial-Use of such Content from the other Party or other individual(s) or orgainization(s).”
    —–

    I don’t see why BRC or any attendee would be opposed to the “sort-of” legalase I just described (and believe me, I spent a better part of two hours typing this up to try to make all parties happy!!!)

    Should BRC, LLC like what I just typed and wants to use any part or all of it, feel free to send me a check ;). It can go towards my “Burning Man 2010 or Bust” fund ;D

  4. Stephen says:

    EFF are taking an overtly destructive stand in the name of their ideals. Burning Man are using a suboptimal solution to a real problem that they haven’t found another solution for.

  5. elephant333 says:

    It’s not Larry Harvey’s desert, it’s our desert, our America. And then BMO takes over OUR SF streets for Decompresssion and we have to pay for that, too?
    C’mon… they don’t own my shots and they never will.

  6. JimEJim says:

    I think some of you are blowing this out of proportion.

    Whether or not the BMORG are abusing this power or corrupt (which is debatable) doesn’t diminish the contributions of the thousands of people that go each year or the environment they create.

    And while I haven’t been around long enough to comment on the good old days that some old-timers like to complain about, the idea that this ruins the event are just silly. I’ve still met tons of great people and had lots of fun at the event in the last few years that I’ve gone, so $300 or no, it’s still worth it for me. I happen to like having reasonable porta-potties, and I’ve seen worse management at smaller events, so it’s impressive what they’ve been able to accomplish, in my opinion.

    There are certain compromises that need to be made when an event grows to this size. I’m ok with that. We can start talking about the ruin of the event when Budweiser sets up booths and charges $8 for a beer. Some of you are just using this as an opportunity to bitch about the downfall of the event (whether you’ve been or not, it seems) and aren’t really adding anything useful to the discussion.

    It doesn’t sound to me like BMORG are closed to the idea of modifying the terms, but we need to have a more productive conversation than the one that’s been going on so far.

    So, maybe focus on a specific solution. Some are suggesting the terms shouldn’t exist at all, since photographers and the photographed already have some rights, but couldn’t there be some compromise that would allow BMORG to act on their behalf in the more extreme cases, like the “Boobies of Burning Man” case?

  7. Francesco Fondi says:

    LOL @ the US “underground” behind Buring Man getting as burocratic as the typical “commercial” event…

    What’s next?! Copyright litigations on LSD blots design?!

    Money, money, money…

  8. Ruggie says:

    I suppose I forgot to add a “Usage of content by BRC, LLC”, which some are also fuming about….so let’s add a bit here:

    “Commercial-Use of such Content is against the spirit of The Burning Man event, however, should both Parties make a Formal Agreement on Commecial-Use of such Content, both Parties must contact BRC, LLC to make a Formal Agreement for such use.

    Conversely, should BRC, LLC wish to use Content for Non-Commercial-use or Comercial-Use, BRC should make an attempt to contact the Parties of such Content to make a Formal Agreement for such use. If such contact is not made, BRC may still use Content but must give written credit to the Parties for such Content, if the Parties are known.

    Should either Party discover content being used by BRC, that Party should contact BRC, LLC to provide the Party or Parties name so that proper credit may be given.”

    And credit is really what it’s all about, innit? :)

  9. Malgwyn says:

    Earlier this summer 200 thousand plus people went to Comic Con, lots of scantily clad people, and lots of photography, no one cared. Comic Con Inc didn’t make us sign a waver(at least I don’t think so). BM seems corporate, lots of people promoting products, if not their own bloated personalities. You have to buy a ticket, there is lots of promotion of the event. BM has co opted the lowest levels of the Rainbow Festival, albeit for Office Clerks and desk jockeys on a bender.

    As for the image to this article. What? No Muladhara? Oh yeah, Bikhram Yoga Inc has trademarked chakras.

  10. arkizzle / Moderator says:

    Jason Olshefsky,

    If the movie theater owner said that you can’t take pictures inside the theater, would you be screaming that it’s your right to take pictures of whatever you want?

    You are allowed to take photos at BM.

    Photography is observing and recording: spectating. It’s generally discouraged

    Then why are there so many photos of it, and why is ActionGrl talking saying “the photographers that attend are a wonderful lot of well-intentioned and respectful creative contributors”?

    Somehow things you are saying here are not ringing true with the things an official spokesperson of the event (ActionGrl) is saying. Funny, huh?

  11. grimc says:

    @rebelrob

    IANAL, and I’m certainly not an Australian one, but in the US if the photographer/agency/company doesn’t have a signed model release, your friend is entitled to compensation. And if it’s plastered all over Melbourne, then he could probably get a pretty nice settlement.

    Maybe the lawyer he talked to meant it wasn’t worth his effort.

  12. arkizzle / Moderator says:

    Since it does not do a lot of personal data collection ( in the spirit of freedom ), it would be quite difficult for the BMO to track down individual participants to act as plaintiffs in a case against a photographer. And I, for one, prefer it that way.

    It has zero to do with BMO, so why you assume they even need to be involved? You are suggesting that they are somehow the agreed arbiter of usage, but that’s half of the argument here.

  13. arkizzle / Moderator says:

    Antinous @ 75

    Spot on.

  14. Anonymous says:

    @101 the CC license still grant the image maker the copy right, not the BMO – and it still give the copyright owner the ability to issue a second different license through a waiver.

    from the license
    “Waiver — Any of the above conditions can be waived if you get permission from the copyright holder”

    and a link to the liscenses:
    http://creativecommons.org/licenses/by-nc-sa/2.5/

    so yea it wont work for the BMO.

  15. Anonymous says:

    As a burner, I completely trust the organization to do what’s best for the community as they have done consistently for many events now.

    The idea that BM would take away my private photos is completely paranoid, and I am glad that there isn’t a cottage industry of people selling images from the event.

    People on this thread who disagree are invariably using default world logic, talking about their right to commerce and so forth, which just doesn’t make sense to me.

    Thanks, Andie.

  16. Anonymous says:

    The main argument I keep seeing over and over again for the BM side is Burners claiming a need for “privacy.” Aside from the idea that privacy with 50k other people being ridiculous, this doesn’t seem to be helping anyone. BMORG is only (so far) going after commercial uses of images — attendees are free to post their images all over the net in non-commercial ways (Flickr, etc.) Therefore, this rights-grab by BMORG is not doing anything to prevent your boss from seeing your ta-tas online.

  17. Anonymous says:

    @Rebelrob. Have a look here:
    http://www.artslaw.com.au/legalinformation/UnauthorisedUseImage.asp

    It would depend on how easily identifiable he was in the photo, whether or not it effected his reputation. He should at the very least make a complaint to the company. It may make them think twice about using an ad agency that uses photos without getting release forms signed.

  18. JimEJim says:

    @Malgwyn:

    You have no idea what you’re talking about:

    http://www.comic-con.org/cci/cci_press.shtml

    “Any videotaping, filming, or recording of any manner which will be used for commercial purposes (non-news) must first obtain written permission from Comic-Con International. The filming of panels in their entirety, and the filming of panel screens is strictly prohibited.”

    Yes, there are a lot of people that go there to take pictures of people in costume, and in that sense, it’s not unlike BM, but that doesn’t mean that some of them aren’t restricted.

  19. franko says:

    @64 & 69 — EXACTLY. thank you, actiongirl. burning man has been around for 25 years, and these rules have been in place for quite a long time themselves, and i don’t EVER see the BMORG misusing them in any draconian way. this is just chicken little stuff because it’s cool to harsh on burning man, as far as i’m concerned. i’ve attended every year since 1996, and i think that burning man is STILL the most open, freedom-loving event i’ve ever been to, despite the infrastructure and “rules” they have to put in place to keep it alive.

  20. Sioen says:

    Thanks for the protection and the thoughtful application. I’ve been attending since 1996, and I want it to stay the special space it is.

    One of the reasons it IS so special is because of the hyper-consensuality among participants — and this policy is just a written-down form of that.

    It’s lovely if you want to take photographs, but that isn’t a right you have any more than it’s my right to have sex with you because I want to.

    Burning Man is a private event. That means consensuality extends to the event as a whole, as well as with individuals. All the event is asking is that you take and use photographs in ways we are comfortable with.

    This seems to me rather simple. It would be different if this was a public event — then I would be jumping up and down with anger and supporting EFF (as I usually do, because they rock).

    But this is our event. Play with us consensually or go home.

  21. Anonymous says:

    BMORG doesn’t seem to understand advertising & photography.

    You would need a property release, and a release from the EVENT itself in order to use a photo in a car commercial.

    That’s why there are no commercials showing candid footage taken just on the street of people.

    Not only does this argument not hold water…
    it makes the BMORG look like they just don’t know what they’re talking about.

  22. Champchild23 says:

    It’s amazing! A group of people set out to pioneer something so unique and interesting, and succeed. In order to do so, they set up their own rules and their own way of doing things. Their own special event. An environment that makes people feel free to do or be whatever they choose. A different world. A world where you can express whatever you wanted without fear of ANYTHING.

    The main issue is still barely being scratched. Once commercially whored out, (and I’m so sorry but if you think this event would not be whored out you are very wrong) everyone and they’re beer guzzling, party animal friends would be racing to Burning Man for a huge keg fest. Ideas such as giving, picking up after one another, being in the moment (which photography takes from anyway), not using money and that unexplainable spirit, etc. would be thrown out the window.

    Then you’re going to have stores eventually opening up at Burning Man, beer gardens, gift shops, cover charge to the dome, etc. There has to be a good solid line drawn in order for something as sacred as Burning Man to stay sacred and pure.

    I understand that under normal American standards Burning Man rules may not be PC but if it takes doing things differently in order to create a Burning Man than I wish people would do things differently more often. People from all around the planet fly in for this event (for some strange reason) yet EFF acts like they are doing something wrong here.

    I promise you the BM spirit would dwindle every year if people saw their 14 year old neighbor wearing “Playa Dust ‘09” T-Shirt with a picture of an art car on it. It would grow in numbers but die in spirit. Keep it special.

  23. Anonymous says:

    GRIMC, nope, there’s no money in a lack of signed model release. You’ll find that it won’t even begin to pay for the lawyer you’d need to go after it. Anyone who says otherwise hasn’t been a part of such a suit.

  24. Malgwyn says:

    Everyone put their Comic Con photos on flicker, lots of Youtube clips Press releases were easily acquired if you bothered, people wanted to be seen and love any publicity for whatever they have to offer. There are some issues about filiming during panels, not that it stopped anyone from taking pictures and video. Has anyone been hassled for posting panel clips? There are lots of them available.

    Perhaps the great secret is to simply ignore the rules and let BM INC try and sue. If they do, they look like A**h*les. People can throw a party anywhere.

  25. pooba says:

    As a a photographer and burner, a huge reason I love Burning Man is the amazing photographic opportunity’s. I shoot more for the art of it rather then selling, but will admit I was hoping to make a photo book to document this year. Last year was my first year, and with the exception of crowd shots I asked every single persons permission before taking their picture. (which can be a bit of a bummer for someone like me who tries for more candid photojournalist style.)

    Some people even gave me their cards asking for me to email them the pics. I agree with Sioen that Burning Man is a safe haven that allows people to have a lot of freedom and act in ways perhaps they would nowhere else. It is the idea of that freedom that I think BM is trying to protect, but as a photographer I feel I should have the freedom as well, as long as I have permission from the subject.

  26. Anonymous says:

    So, to protect BM culture, they need to restrict the rights to record BM culture. Just like we need to destroy that village to free it. Sure. This is meaningless; BM folks, regardless of their good intentions, speak a different language, and refuse to see the point of view of rightsholders.

    That said, I am absolutely certain, given my many years of personal experience dealing with contracts dealing with temporary use of federal land, that BMO is actually committing a violation of federal law by withholding the right to withhold media rights to anything shot on this land.

    Of course, if I signed this, I’d get in trouble at work, so I’ll remain anonymous this time.

  27. ASIFA-Hollywood Animation Archive says:

    There is no litmus test for entry to the festival, so the jackasses get in with the people who would only use the photographs for the forces of good.

    So much for “community” then! If you can’t trust the people around you at burning man, how is this community any freer than walking down the street in your own town?

    This rhetoric has twisted photography into being voyeuristic “mediated representation” and taking drugs and running around naked in the dirt is now artistic expression. How far from logic can people get in defense of acting silly?

    There may be great artists and wonderful artwork at burning man, but not taking responsibility for your own solipsist lapses in judgement isn’t art. If the goal is just to run around drugged up and naked and not get arrested by the cops, it would make a lot more sense to do that in your own private back yard with friends you can trust. Heck, with flush toilets and a weber grill, it might be a lot more comfortable.

  28. Anonymous says:

    #6 nailed it. no car commercial under union rules would get away with using someone’s image without a release.
    FAIL.

  29. technogeek says:

    Personal reaction: Their party, their rules. If you don’t like it, go to a different party or host your own. If enough participants do so, they may or may not change their rules. If the participants don’t, it should be assumed they accept the rules. It’s not as if they’re trying to hide the policies.

    Though a good compromise would be to set up a designated photo area with suitable screening, in which it is back to being a matter of the photographers and models/artists/whatever hashing out their own agreements — just to avoid having to go completely offsite should they actually want to make such a deal.

  30. Kathryn Hill says:

    While I realize the policy is to protect the attendants of the event from having their private affairs publicized, it’s a slippery slope; the same assurance that they’re protecting us is also demanding that we surrender a semblance of freedom that made the place worth going to in the first place. These two things are in direct conflict with each other.

    BM isn’t just using these draconian rules to stop non-consensual pornography; they are also using these rules to use these photographs for commercial use, royalty-free. And I am not okay with that.

  31. LemonOne says:

    Burning man, lets change it to burka Man.
    Then at least no one has to worry what their boss thinks.

  32. Chevan says:

    I have no problem with the Burning Man folks’ policy, and I think the article was a calm, composed, and well written response.

  33. Jerril says:

    Yes, we understand the current folks running Burning Man are benevolent tyrants and have no intention of using all these copyrights they’re accumulating and hoarding for “evil” – ie crass commercialism.

    But the HUGE problem with Burning Man accumulating those copyrights is that there is NOTHING stopping either them or future administrators from being or becoming crass and commerce-centered.

    And if it happens, the original artists and photographers involved have had ALL their legal rights stripped from them, so they can’t fight back.

    You may think you have a lovely utopian idyllic organization that will for ever and ever remain unsullied and undiluted, but you don’t. It’s run by humans. Humans can be swayed, tempted, and corrupted. And that big, fat pile of copyrights you’re accumulating is a veritable dragons hoard.

    EFF isn’t fighting for “Gun companies” and “pornos” to go shoot commercials at BM – BM is 100% entitled to ban them from entering and to kick them out if found sneaking around. Copyright has nothing to do with it.

    They’re fighting for the rights of photographers to protect their own works from BM. Right now, BM isn’t causing significant problems. That doesn’t mean BM should be GIVEN the power to cause significant problems, and yet thats what they’ve demanded.

    This is the problem of companies collecting excessive amounts of personal information all over again – only in this case it’s personal IP being hoarded, not phone numbers, email addresses, SIN cards, etc. Just because right now nobody intends to sell or licence all those copyrights doesn’t mean that at some point in the future there won’t be a financial emergency and that big, tempting pile of valuable copyrights just sitting riiiight there… begging to be liquidated…

  34. elephant333 says:

    Burning Man is not a “community”.
    That issue was addressed by Chicken John several years ago.
    I am not part of the Burning Man Cult of Personality.
    I don’t worship The Man, the Police Man being Larry Harvey and his inner circle of money makers.
    I always ask permission to shoot photos, I have model release forms on my shots, and Larry Harvey isn’t getting a penny off of my art and hard work, not a chance, I’ll fight him all the way to the MOON if I have to.. I’ll title the work in any manner which I feel is appropriate, the long and short of this being I’ve never wasted a frame of film shooting pictures of Larry’s effigy going up in flames.
    I think it’s time for so called “burners” to find out where all the money is going, by the way.
    Assume 100 MILLION dollars over the past 10 years? Is it true that Larry Harvey chops off over a thousand numbered tickets each year and sells them through Craigs List etc., a scalping situation?? Well, is it true?
    And what is this nonsense of taking over OUR real community, OUR S.F. streets for Decompression? Why do we have to pay Larry Harvey 20 bucks to go to OUR favorite watering hole CAFE COCOMO on the night he and his cronies take over OUR City for another fast buck?
    Larry Harvey and his Merry Band of Gangsters will take the rights to my photographs in their dreams!

  35. ASIFA-Hollywood Animation Archive says:

    My understanding was that the hawkers in question weren’t allowed to mention their company name, weren’t making sales, and weren’t paying for the privilege of being there. It was about giving people ideas, and demonstrating what is possible, not selling things.

    So it would be fine for someone to set up a booth at burning man and educate people on the merits of term life insurance as long as they don’t mention the name of the company they work for?

    Be honest. Commercialism and “mediated representations” are forbidden unless they’re YOUR particular product or artistic medium. This isn’t about freedom. It’s about creating a theme park for a specific niche subculture.

  36. ASIFA-Hollywood Animation Archive says:

    Why does burning man need to act on anyone’s behalf? Why not have those involved stand up for themselves instead of expecting the management of an entertainment event do it for them? If I was photographed at the ball game and it ended up in an ad, I wouldn’t expect the Dodgers to take legal action on my behalf.

  37. Takuan says:

    so I hear Flaming Man is opening up next door.

  38. Takuan says:

    arrr! Fook that! We be bringing the Wicker Man next year to show all ye colonial poofters. An we won’t be asking fer a volunteeer , if ye get me drift.

  39. ASIFA-Hollywood Animation Archive says:

    Would the people crying foul say the same thing if it was concerning photographs inside a movie theater?

    At a movie theater, people are going to see a show created and owned by a third party. At burning man, the audience is the show. They should individually own their own performance.

    It’s ironic that anyone would want to give up their rights to ownership of creative works for the right to run around naked in the dirt. That is incredibly stupid and naiive.

  40. Uniquack says:

    Why is it so hard to understand that maybe people want some spaces where they can be without being that dominated by mediated representation and commercialism?

    Our society is dominated by mediation of experience through photos and videos. Much of the internet is largely about this too. We live vicariously through mediated experiences. We often forget the immediate, creative quality of living spontaneously and directly. During BM, people experience living and sharing their creations together in an immediate way. There are few spaces where this occurs in such a large, intense way in today’s world. Let BM be BM. You can go elsewhere to find your mediated reality.

    Of course, that’s not satisfying to those caught in the nexus of it, for they must continually seek to colonize and exploit the immediate as raw material for their often commercial aims. And even those who don’t claim to want to commercialize nonetheless may seek the same.

    If you want to experience BM, just go and be there. Having a representation of it is not the same but it ruins it for those who just want the immediate experience. If you can’t get to BM, maybe it’s time to consider how you can make similar immediatist events occur closer to home?

  41. Anonymous says:

    NO NO NO. If a photographer sold a photo of the man burning to a car company to use in a commercial, then so be it. Burning Man has been about individualistic freedom since the beginning. Using one’s creations (including photos and other media) in the way they want is part of this freedom. This is not the way to protect it. My opinion of Burning Man has been irrevocably damaged. “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive.” – C.S. Lewis (Even a Christian can get it right)

  42. mdh says:

    darth schmoo at 110 = actions have consequences, including your choice to work for a tyrant. Don’t expect ME to adapt to YOUR crappy reality.

  43. Anonymous says:

    I’m just a photographer, not a terrorist. Photography is my art and an archive of my time at the event. I don’t sell my photos nor do I post them to webistes. I share them with my friends, family and with the person who may be in the shot.

    I say treat this event like a postcard mailed via snailmail, anybody and everybody is going to see what’s written on the back and the same goes true for the Playa with you junk hung out to dry.

    Someone will find an artist bent to it all

  44. Anonymous says:

    @6 nonsense.

    There are plenty, plenty, plenty of opportunities for photographers to sell photography with cars or humans in the shot without producing a release. Maybe not a Jag ad, but various media, lower end commercial, or outright seedy operations will take them.

    As someone who’s been to Burning Man for several years, I recognize that this is not a normal situation. It’s mostly not about participant snapshots – it’s about creepy dudes with telephoto lenses, and pros looking to exploit the amazing lighting and subject. Some have good intentions, some not so much, but either way I think that the subject of the photo deserves protection.

    I wish there was a solution other than Bmorg “owning” the rights, but I don’t have the solution, and I think until someone comes up with a viable one, then the work that Andie does is the best thing for it.

  45. guymac says:

    Huh? Find me a participant who would vote “NO” on seeing a video or photo of the Man burning, or their own art car or sculpture, in a car commercial.

  46. Anonymous says:

    @99

    Photography is an art for its own sake; in the digital world especially it is immediate. I’m fine if BMorg wants to limit commercialism at Burning Man.

    But please don’t muddy the debate by becoming anti-art. There’s lots of art at Burning Man, yes? Methinks your distinctions between mediated and direct are not as clear as you think they are…

  47. moosehunter says:

    soooooo,

    If I re-create a burning man, hire nekkid people to dance around it for my car commercial— thats ok?

    ya know, nude resorts handle this fairly easily– NO Pictures allowed, if you get caught, you get ejected….

    its a stupid argument, and requires a test case…

    but, then again, you cant sell pictures of disneyland leagally either

  48. Anonymous says:

    @42: “but either way I think that the subject of the photo deserves protection.”

    If the subject (or, in the case of artwork, subject’s owner) gives the photographer full permission to do whatever they want with the photo, including commercial use, Borg can still object and claim ownership of the photograph.

    Yes, it does protect those who don’t consent, but it overreaches to deprive people who do consent. The best alternative policy is for Bmorg to have no policy and let participants defend their own rights.

    Nobody’s forced to go to Burning Man and expose themselves, post artwork or otherwise be in open view of other people. If you don’t want yourself or your artwork to have any chance of ending up in a car commercial, titty tape or other commercial use, don’t go to Burning Man. Otherwise, suck it up and/or realize that it ultimately is not a big deal at all.

    Bmorg doesn’t need to have any responsibility or powers as event host other than to intervene to protect people from direct physical harm.

  49. mdh says:

    Actiongirl – right on. welcome aboard.

    My concern here is that there appears to be a lot of potential for overreach with this action – all in order to stop a few bad actors and placate the people whose inner prude is only silenced for that one week out of the year.

    If it’s a culture worth protecting, then that is true for 52 weeks a year, and if it’s true 52 weeks a year then why is anyone being a prude about it? Otherwise it’s just like a nice beach in Connecticut – a vacation spot with limited access, and those get ruined by “those people” all the time.

    You have a problem with porno filmmakers? I’m sure someone on the playa can invent a countermeasure.

    BM should rise and fall without compromise, that’s what’s been impressive about it, to me, from the outside, so far.

  50. seanboing says:

    I’ve been a burningman participant since 1998. I’m really glad that commercial use of burningman images is limited. If it wasn’t that way, we’d see the neon man lit behind a suv in a tv commercial. We’d also see Girls Gone Wild, predatory shots of let’s say, Critical Tits, arguably the most empowering topless women bicycle critical mass, and a sacred honoring of women’s bodies. Without these limitations on commercial use, people would feel less free to be who they wanted, act the way they would like. There is also a general rule on playa to ask before taking photos. Burningman is all about free expression and exploration. Bring almost any whacked out idea out there and it is accepted, as long as you’re not hurting anyone. I need a larger protector than myself. If someone were to make money off a photo of me without my knowledge, I would want someone there protecting me.

  51. mdh says:

    We may have to requisition that phrasing for the anonymous-comment box..

    well now, I comment pseudonymously. How would I even enforce any claim i might make, assuming i weren’t flattered?

  52. Anonymous says:

    Hmm. It is a heated discussion, and even the moderators tend to be immoderate.

    The situation: BM is a private event on public land, and participants enjoy the freedom and spirit of the community experience. They might do things that they would not do on the main square of their hometown. They perceive overt commercial or sexual exploitation of the event through lecherous photographers as detrimental to its purpose. Photography is somewhat accepted, but might also be frowned upon. The organizers use the DMCA as a tool to fight such exploitation.

    From what I read, there are several stances here:

    - The original EFF argument points out that the BM organization _could_ use your burning man pics for its own purposes, and force you to refrain from publishing them whenever it likes.

    - BM organizers tell us that they do not use the pics commercially, but that they use the DMCA as a tool to prevent overly voyeurish behavior and exploitation of the event afterwards. It is fine to photograph if it is done reasonably, and the rule exists because of the very few unreasonable guys (which can be either naive, or malevolent).

    - BM participants mostly strengthen the argument of the organizers (they did not abuse their DMCA trick in the past, and they use it only to protect the individual freedom from exploitation by creeps and immatures).

    - Some third parties point out that the DMCA is bad, so it should not be used, even for a good purpose, or that the DMCA is not applicable because the event is on public land, or that they would on priciple not trust the good intentions of the organizers, or that people should either accept being exploited or refrain from exploitable activities.

    Especially the last point strikes me as a bit asinine.

  53. Anonymous says:

    “Burning Man rep, the issue people are having is not that you are taking steps to protect the people who go to Burning Man. The issue is that you are doing so to the detriment of the people who go to Burning Man. You’re patronizing them by insisting that they cannot be trusted with their own actions.”

    Actually, you’re wrong, and that makes me wonder whether you’ve ever actually been. It is absolutely true that there are people there who canNOT be trusted with their own actions, for instance, the posting of naked pictures on porn sites. There is no litmus test for entry to the festival, so the jackasses get in with the people who would only use the photographs for the forces of good. You would put the rights of the photographers over the rights of the photographed.

  54. Anonymous says:

    #53 – “It is a private event on private property.”

    I thought this took place on federal land.

  55. doublejack says:

    #68 — Strawman, much?

    #64 — Concur, 100%

    #69 — Yup.

    #70 — LOL.

    #82 — I see where you’re going, but you’re wrong. Have you ever been? I’d guess not. Cite an actual case where BMORG has denied someone the right to do what they like with pictures of art the photographer created herself. I doubt you can, but for everyone of those I’ll bet I can find dozens of instances where BMORG went to bat to protect the artist’s or the individual’s rights against an unscrupulous photographer.

    For the record, I have contributed to the EFF from the beginning, and will continue to do so. i think their intent here is misguided and does more harm than good, but it’s not malicious.

  56. Anonymous says:

    So according to #147, if I capture an image, get a release from the person depicted in the image, I should not be allowed to associate facts such as date and location of said image and sell it.

  57. doublejack says:

    Also: I have personal experience with this issue.

    A full-color image of me (anonymous because I was wearing a mask) made its way onto the back cover of a book about “bizarre” festivals. Mine was the only picture in the book representing Burning Man.

    My costume was my IP. I gave the photographer permission to take the picture, but not to sell it. I eventually contacted him, and he offered to compensate me despite receiving zero compensation from the book’s author.

    In this instance, I just thought it was kind of neat and declined compensation. No harm, no foul. But I’m glad BMORG recognizes that my rights are important, and might have helped me stand up for myself if I had protested.

    Until you can cite actual harmful, unjust actions on BMORG’s part, your argument is invalid. IMHO.

  58. DoubleTee says:

    #30) BEELZEBUDDY

    “Every time stories like this flicker across the intertubes, another batch of hipsters quit in disillusionment.”

    Burning Man is not for the easily disillusioned hipster.

    -=TT=-

  59. Anonymous says:

    I think it’s enough going to burning man once to see that the EFF article is ridiculous, and the whole debate is. Sure there are draconian policies against voyeurs – I wouldn’t have it any other way to be honest.

    It’s a benevolent dictatorship at BM – but at the same time, it is the one place on earth where you are more free than anywhere else.

    The policies show that the world isn’t ready for that, and perhaps explain why burning man and the “real world” are not compatible for the most part.

  60. pereubu says:

    Re: #67

    Andie -

    There are just and proper ways to deal with improper use/infringement of this type. One is to restrict use of image recording devices on the front end at the event, which you already do. The other way is to enjoin misuse *legally* in court, which you also already do. If you’re able to convince a judge to award ownership of the offending images as part of a damage settlement, more power to you.

    However, claiming ownership “just because” in an overreaching EULA in teeny weeny type on the back of the ticket is, simply put, corporate-level robbery.

    No one’s questioning Burning Man’sâ„¢ right to restrict use of imagery taken at the event.

    It’s the stealing we object to.

  61. Anonymous says:

    Nobody seems to get the obvious: any contract restricting media rights on public land must be vetted by the agency that oversees the land, or it’s an illegal contract, period.

  62. Antinous / Moderator says:

    If I saw a picture of myself in an ad, I’d get an agent.

  63. Dipsomaniac says:

    #84: But BMO wouldn’t be standing up for your IP, as I understand this.

    They’d be standing up for THEIR IP, because that’s what it’s become. Your rights to determine what is done with your image are, in fact, being surrendered to them, regardless of any releases or intent on your part.

    Or am I wrong about this?

  64. mattdidthat says:

    POSTED BY RINDAN [Burning Man] is a private event on private property.

    Private event, yes. Private property, not so much.

    P.S. Hi Doublejack!

  65. Anonymous says:

    #34. But this is our country. Play within the law or go… someplace else.

    #44 Disneyland is private property, which Black Rock Playa emphatically is not.

  66. arkizzle / Moderator says:

    MDH,

    If I lived in America, I’d have you sign a release. But as I’m over here.. yoink!

  67. brachiator says:

    ASIFA @ 116:

    “What happens at Burning Man stays at Burning Man” – that, I think, is the pitch. I think BMO wants to present BM as an event at which you can go wild in public and not have to worry about recordings of it filtering out into the world (unless BMO filters them out, of course). The pitch is a “safe space,” from which no one’s going to sell nude photographs to Girls Gone Wild – not photographs of you and not even photographs of themselves. This “safe space” is the product BMO sells – not just the event itself but the event as a “safe space.” At least, that’s how I read what the BMO people have written. But BMO can do this, can ensure this, can truthfully sell that “safe space” product, only by acting on behalf of the attendees in some way (as well as on its own behalf), policing the WWW and other media sources for event photos used “improperly.”

    The thing is, if BMO is to have a snowball’s chance of ensuring that “safe space,” it will have to exert an extraordinary amount of control over attendees and may also have to engage in an extraordinary level of surveillance outside the event. BMO could outright ban photography and video at the event, search people coming in and sue them if they later turned out to have made photos/videos. Or BMO can effectively own all the photos/videos made at the event, keep up 24/7 surveillance on the Internet and other media outlets for misuse of the photos/video and sue attendees and third parties for such misuse.

    The more I think about it, the more complex the legal issues become – assuming BMO wants to maintain this phenomenal power over the events and attendees. For some situations, like the “misuse” by an attendee of the attendee’s own photograph, a POA probably won’t work (that would be like the attendee suing himself) and BMO would likely need to own the photograph.

    One thing is for sure, though – this shouldn’t be buried in fine print! EFF is right that BMO’s making an enormous power grab. This is something that should be upfront, discussed and questioned. I wonder what attendance would be like if with every ticket purchase and every entry onto the Playa each person was stopped and confronted with “Dude – you know that WE OWN every photo you take here, right? RIGHT?!?”

  68. doublejack says:

    #86: Their IP is the penumbra under which my IP gains enhanced protection. To oversimplify, they are better able to defend my rights than I am.

    If that requires them to assert the priority of their rights over mine, I’m OK with that — because I trust the people who make up the BMORG to deal with me fairly and honestly.

    Like I say, I have adamantly disagreed with countless decisions made by the Burning Man organizers. But over 18 years of association with the event, they have never given me cause to believe they would abuse the power they claim.

    That said, I absolutely can see the argument that the rules themselves could outlive the beneficence of the current BMORG — at which point, I would stop going and/or revisit this discussion.

    But I think the EFF is tilting at windmills at this point. Great, they’re informing people about what they’re agreeing to by attending Burning Man. Caveat Emptor, and all that. And as Actiongirl says, hopefully they will spur the evolution of these rules in a positive direction.

    But is Burning Man really the most appropriate focus of the EFF’s attentions? No. And might they be glossing over a lot of vital realities that the BMORG has wrestled with over nearly two decades? I believe so.

  69. coyotl says:

    As a photographer, it bothers me that BMORG feels like they can seize the copyright to my work at any time. Do they do this for painters at BM? Sketch artists? For sculptors? Is there any other sort of private property that they retain the right to seize?

  70. Rindan says:

    I actually support Burning Man on this one for two reasons.

    1) It is a private event on private property. They set the ground rules upon entering. In the same way if someone enters your house they set the rules by which you live or find yourself expelled, so does Burning Man set the rules on their private event. Don’t like the rules? Don’t go. Part of the rules in this case is that if you are going to come and photograph at their private event, they get final veto over power. If you don’t like it, don’t photograph there or don’t go.

    2) This is basically the ‘protecting the naked girls’ clause. Yeah, I might got phototed while I am there, but the chances of someone smearing pictures of my limp hairy…hair… on the Internet are fairly slim. On the other hand, the 20 year old naked girl next to me probably has a lot to fear from the The Girls Gone Wild Bus. You could argue that if you don’t want to be photoed in public doing something ‘wrong’ you shouldn’t do it in public. That kind of defeats the entire purpose of this private event we call Burning Man. This is one of the few places where you can feel liberated wearing your crotch flame thrower. There are enough places in the world where you can’t do this. Do we need to add another? God forbid there be one spot on this earth that exists for a few days where people in a large group can experience a little collective social freedom.

    Until we have freedom parks, Burning Man is it. If draconian photography rules are the only way allow for a little social freedom for a few days, eh, so be it. Don’t like? Don’t go.

  71. JimEJim says:

    I do understand the reasoning behind BM wanting to protect the abuses that have occurred in the past from porn sites and other people using the photos, like the “Boobies of Burning Man” case.

    I also know the EFF is generally fighting the good fight and trying to make sure everyone is getting their fair use rights in this digital age.

    Seems to me like both sides of this argument have good intentions and just need to have a more serious discussion about how to restructure the rules so everyone wins.

    The BM terms may be poorly worded, but it doesn’t actually seem to me like they’ve been abusing it so far. The original EFF blog entry though isn’t really offering up a good alternative right now.

    I’d love to see this discussion evolve into something more productive than the EFF just calling them out, and possibly they could present some suggestions of how to protect the people that have been abused in the past while still keeping everyone else sane.

  72. Nina Paley says:

    Has anyone suggested simply making all Burning Man photos CC-Share Alike? A strong copyleft license would ensure that the photos would never be put to corporate use, since no corporate advertiser would copyleft their commercials and ads. So problem solved.

    And Share Alike licenses are as free as free can be. Maximum freedom actually “protects” the images from abuse.

    BM makes a mistake in focusing on CC’s “non-commercial” license, which is quite an unfree license to begin with. Consider real copyleft, BM, like CC-SA.

  73. Stephen says:

    Andie wrote:
    “No one’s questioning Burning Man’sâ„¢ right to restrict use of imagery taken at the event.

    It’s the stealing we object to.”

    That first statement is overtly false. And since you use an unspecified “we” the second statement is also false. What some people object to is the Burning Man organization’s interference in their right to make soft porn and gun ads at their Burning Man. Financially speaking, those are the people EFF is representing.

  74. grimc says:

    @35

    I’m not really disputing what you’re saying, but if there was little to no monetary risk for companies to use images without releases, they wouldn’t be paying for ad agencies’ art buying and business affairs personnel.

    On a side note, no car company would use footage from BM. If they wanted an artcar or whatever, they’d have no problem paying a director to create it themselves.

  75. adonai says:

    On the whole, I don’t see the BM people being dickish about this. They’re not trying to control people’s photos per se – just prevent exploitation of photos of the event, similar to what Virgin did a while back using photos they grabbed from Flickr.

    It’s unfortunate that they have to use copyright law to do so, which give the clauses etc quoted over the last few days, but it’s not like they’re trying to control the photos to sell to companies themselves….

  76. Anonymous says:

    Having been there, and seeing the decimation of our freedom to act crazy without everyone in the world getting a picture of it by the folks who brought you the “Girls Gone Wild” videos, I am happy that, if I decide to perform in the free expression of BRC, I wont have to worry about my picture winding up on the internet or in a video sold to frat boys across the country. It is because of the “ha ha she’s naked” neanderthalic mentality of the people taking the pictures that this “misuse the DMCA” has been put into place. They should feel lucky that amateurs are allowed to bring in cameras.

  77. Anonymous says:

    @146 – As long as you didn’t take them at Burning Man, you are correct.

    Everyone: The DMCA is very useful for protection, because otherwise it would be hundreds and thousands of expensive lawsuits, all over the place, which would bankrupt BMORG and end the festival. The only way to get this ability to use the DMCA is to take the copyright, so that is what those going agree to.

    To those saying the photographers should own the rights: That’s also a problem. I take a naked girl who will sign a release and make a load of photos at BM, and then I can sell them as “Tits out at Burning Man”? Because that’s what it would mean. Assignment of the copyrights means that will get the photographer slapped with a DMCA notice.

    And as for the commercial act being disallowed? Well, if I simply put those photos up for free to promote my name, and get further future work, that’s just as bad, just as commercial, even though no money changes hands. Why do porn sites give away video clips? It is for future profits, not because of the joy they feel giving stuff away!

    The strict IP assignments in use are the only way to protect any of this.

    One day, I hope to get to the USA to go. I’ll take a camera and a few photos, and I’m sure I’ll be fine if I’m polite and ask nicely.

  78. Anonymous says:

    I very much understand the position of BMORG on this issue, and as a participant and photographer myself, I am very glad to have the protection of BM against the risk of inappropriate use of images of myself or other participants. Without protection, misuse of images could lead to privacy violations and the dilution of the BM culture with even more commercialism. BM can point to an, it seems, spotless record of using its far-reaching power granted by the EULA only in necessary and well-considered cases (such as the examples given of unauthorized use on porn sites). I have met many of the BM organizers and I trust them and trust the community to do right by participants.

    However, the question that remains, and I think lies at the crux of the concerns of the critics here is: what guarantee do we have that in the future these powers will not be used in ways we would disagree with? The legal documentation must be considered in the context of a ‘worst case scenario’ where someday people with a different agenda hold the rights to these images of the event. The EULA needs to be nuanced enough to protect photographers and participants alike no matter what might change in terms of who has their finger on the button at BM. Simply giving overarching rights to BMORG is not the final answer, though I agree it is the best one anyone has been able to come up with so far and has so far worked well.

    Andie: please continue to keep us in the online community informed of progress made on this issue. As one of the organizers of a regional Burning Man event (this year how to deal with images of the event became a bigger issue for us), I am looking to BMORG for guidance on how to deal with photography. To all of you who say ‘go start your own event!’ well, we did! And all these questions are not so black and white to answer when it’s you having to make the rules. The more we try to work it out the more complicated it seems.

  79. Duffong says:

    I don’t know about you suckers, but I plan to copyright Jupiter. Take one unlicensed photo of my planet or use one of my photos without permission and I’m coming hard down on you with whatever law happens too apply in whatever civilization I happen to be dominant in.

    Love,
    God

  80. Anonymous says:

    #47 – SEANBOING (I’ve got nothing against you personally, this just strikes a cord)

    “If it wasn’t that way, we’d see the neon man lit behind a suv in a tv commercial”

    Or maybe a green energy pavilion underneath the man hawking solar power and bio-diesel wares? Sure, we’re all for that, but how is it not crass commercialism? Maybe we’ll have hummus vendors hawking their wares under the man this year, and why stop there?

    Burningman, LLC has become a parody of everything it claims to stand against. No crass commercialism, unless its *our* crass commercialism. Free culture and expression, unless we don’t like the culture, or the message. And you’re free to practice your art, unless we don’t like it. The message is clear: your photos are not yours. The message is clear: this is our party, and you’re not free to make it into something we don’t approve of.

    In what way, exactly, is Burningman, LLC not a corporation protecting its carefully managed brand of anti-corpratism and free expression?

    It’s actually pretty funny, and just taking a few steps back, it’s not that hard to see the joke: Blackrock City has a lousy power grid, poor sewage, bureaucratic DMV, and a corrupt and elitist unelected government prone to favoritism. It’s the very model of societies ills, sold back to you, for 300$ a ticket by a multi-million dollar corporation. Yay!

    You’re being sold a product folks. Own up to it and stop trying to pretend it’s anything else but Disneyland for the “free-culture” movement. The only difference between Burningman, LLC and the Walt Disney Co, is that you can ride the rides in Black Rock naked and tripping balls…

    …and all it will cost you is 300$ and handing over your rights.

  81. ASIFA-Hollywood Animation Archive says:

    Asifa, Andie Grace here. We do not use these systems to license peoples’ work to other parties, ever.

    Why do you want to prevent the subjects of the photos from licensing their images themselves? If someone takes a photo of me or my copyrighted artwork and wants to pay me for the right, it’s none of burning man’s business. It’s between the publisher and me.

  82. pereubu says:

    Hey Andie -

    You still haven’t answered the central question: Where does BMORG get off claiming copyright of other people’s work?

    C&D/takedown notices of unauthorized work,”we’re doing it for *your* protection, man,” yeah, we get that. No question there.

    It’s the, “Your photos? Oh, now they’re ours.” That’s the issue that’s getting photogs’ backs up.

    Please answer the question directly.

  83. Ian_McLoud says:

    There is one thing that is clear to me from this discussion:

    Burning Man, as the Burners know and love it, is dead and gone. Yes, it will continue to happen each year, just like Lollapalooza, but that doesn’t mean the original experience and spirit isn’t gone.

    Once something is having to defend itself from commercialist wolves, it is too late, the commercialist maggots are already systemic.

    Start from scratch OR continue to grow, become a omnipresent piece of pop-culture, and eventually die an ugly and uninteresting death…

    This is all I really have to say about this discussion while feeling that both sides here have compelling arguments.

    I’m not glad about my opinion, but I think it rings true.

    I hear the Oregon Fair is a NortWest BM but without the exposure and sand. If I post a link, am I responsible for its ultimate and inevitable demise?:
    http://www.oregoncountryfair.org/

  84. Anonymous says:

    I’ve been reading Burning Man’s stuff for years… I wanna GOOOOOO!!!!!! I pray, next year…or the next….

    And I have thoughts about it’s photo/film policy…

    Frankly, though the forces of control and commercialization are creeping in, it’s still a TAZ and more importantly a “Participant” event, not a “Tourist” event. They already have tons of parasite government pigs trolling around looking for dope and other “Justice by points” reasons to arrest and harass people. If cameras showed everything 24/7 to the gawking public sheeple, the “Law by points” government officials would slap so many laws or just abuse environmental protection laws to shut it down.

    Really, its something that that is one of the last places to even pretend you are free. I mean, really, the least and last thing you should be able to do in AmeriKKKa is walk around in a warped costume proclaiming the “Gospel of Fuzzy Wuzzy” and though you’d be an annoying ass, the Pigs shouldn’t be able to harass or arrest you unless you are actually doing something to break the law or cause reasonable intimidation. (like wearing a trenchcoat and bugs bunny mask and walk around a bank for hours!)

    And its something else that people are so desperate for even the silly nonsense of “Partying” and “Public personal expression” that they’d go to the remotest, bleakest most Gawd-forsaken spot in AmeriKKKa to do so… AND that the F*cking parasite pigs follow them there, trolling for “Druggies to Bust”… If people are going to risk becoming a “Dune Mummy” (1) that some post human race finds 1000 years from now just to be able to wear a metal tyrannosaurus head and Mad Max fashion wear without getting arrested, LET THEM!!!

    1- (wander off in a dust storm, hallucinogens optional, that might happen)

  85. brachiator says:

    NINA PALEY @ 101:

    Changing the proposed license doesn’t solve the enforcement problem that BMO claims. No matter what license an image is released under by the photographer, BM supposedly can’t take action against third parties unless it grabs the copyright. So, while it could sue the participant for violating the T&C by selling images to a car company, it couldn’t stop the car company from using the images in an advertisement.

    Under this theory, there seem to me only two ways to accomplish what BMO wants, which is near-total control over all images taken at the event: (1) ban photography outright or (2) BMO owns all photos. The copyright grab in the T&C takes the latter route, in substance if not in form.

  86. pereubu says:

    Re: #91

    Stephen -

    Andie didn’t write that comment. I did.

    The issue is *not* whether Burning Manâ„¢ has the right to restrict photography at the event or order takedown/recover damages for image misuse. They do.

    The issue is is it right to take ownership of someone’s work through a sneaky, overreaching EULA. It isn’t.

    Please review the background of this issue.

  87. Kosho says:

    BM is a private event held on public land. Taking a photo on the Playa is NOT the same as taking a photo on a public street where you have fair use of the photo. The event producers have a right to restrict photography and video. I am glad they do. If you don’t like their policy concerning photography, create your own event and make your own policy. Try to imagine how different (and less creative and fun) BM would be if images and video of the event were plastered all over the media and the web both in commercial and non-commercial contexts. For one, a much larger group of voyeurs would show up.

    If you have ever attended some of the Playa events where clothing is definitely optional and observed the ever present male photographers with their long lenses zooming in on bodies with absolutely no regard for permission or privacy, then you should applaud BM policy in this regard.

  88. Anonymous says:

    I completely support the BMO in using this legal slight of hand to give themselves the ability to, without question, demand you take down the photo of me, because I’m vulnerable out on the playa, and just because you snapped a shot with your camera doesn’t mean that whole shot is yours.

    Thank you BMO for holding this line. I’m not sure what EFF is complaining about except some legal non-straightforwardness. Is the EFF suggesting people should be able to make money off photos they took on the playa? Is EFF suggesting that a personal photo that is published on a web site for all to see is fine because that photo belongs to the person who posted it? What exactly is the problem result that EFF is trying to protect.

  89. Anonymous says:

    What’s interesting to me here is how people are approching this from such a strong ideological stance that they refuse to acknowledge the issues on the ground.

    In fact there are hundreds of thousands of shot of Burning Man floating around the internet, and to the best of my knowledge, BMO has done nothing to have them removed. Go visit flickr and search “Burning Man 2008″. There are something like 40K+ shots that come back for that search alone. (Sort for “interesting” and see tits n’ dinks galore.)

    However, what you won’t find, is sites selling videos of naked women showering. All because BMO used exactly these unspeakably nasty rules to protect participants from exploitation.

    Now if you honestly want to try and argue that that Visigoths are not waiting at the gates with HD cameras, ready to peddle your tits online to the hoards of masturbators out there who will also consider a future visit to the man, because the sheer number of attractive women they see represented must make up at least 80% of attendees, be my guest, but reality, and America’s free market system think you are hopelessly deluded.

  90. Roger Krueger says:

    Things change, the Oregon Country Fair (#58) sure as heck isn’t what it used to be. Back in ’82 I drove to OCF to see the Dead, camped in the parking lot, spent the whole night drinking, singing and passing the, um, peace pipe around a big fire. That’s ALL against the rules now. Makes BM sound pretty darn free.

    #6 is dead on, the excuses given for the copyright grab are BS.

    But I don’t think it’s because their whole position is BS, it’s because the creepy-tog issue is something they don’t even want to mention. So they invent distraction arguments. Just not very skillfully.

  91. brachiator says:

    Why is it not sufficent for BMO to obtain a power-of-attorney (POA) to enforce the photographer-participant’s copyright against BMO-disapproved use of an image ? Why must BMO obtain the copyright itself?

    The Burning Man T&C already rely on a POA to effect the contingent assignment of the photographer’s copyright to BMO. That is, the T&C don’t have the photographer immediately or necessarily ever assign the copyright to BMO – they merely provide for assignment only “in the event any third party displays or disseminates any of [the photographer's] images in a manner not authorized by” the T&C. Presumably so that BMO doesn’t have to contact the photographer to sign documents assigning the copyright, the T&C provide that the photographer-participant “appoint[s] Burning Man as [his or her] attorney-in-fact to execute any documents necessary to effectuate such assignment.” Thus, if the triggering third-party use occurs, BMO takes care of all the formalities required for the copyright assignment (transfer papers, recording with the Copyright Office, etc.)

    If the photographer-participant can grant BMO a POA to formalize the copyright assignment, why can’t the photographer-participant grant BMO a POA to enforce the copyright on the photographer-participant’s behalf? It seems to me that the POA to enforce the photographer’s copyright would solve the standing issue, e.g., the car company in the example could no longer claim “that Burning Man has no standing to enforce the Creative Commons license, only the photographer does…” If so, BMO need not impose so draconian a measure as taking the copyright, but is still empowered to go after unapproved uses. Moreover, the photographer remains free to enforce the copyright himself or herself – including against BMO, if it should ever turn “bad.”

    I’m not certain that the above would work, but, if it won’t, I’d sure like to hear why not.

  92. Anonymous says:

    The BM “decree” is an unlawful “adhesion contract,” and is therefor unenforceable. If you don’t know what an adhesion contract is, look it up.

  93. doublejack says:

    This year will be my 18th year at Burning Man. I’ve been having this discussion literally longer than some high school graduates reading it have been alive.

    I agree with, among others, #34.

    I also agree with Actiongirl — there may be a different way forward. But the vitriol and certainty of improper action here are entirely misplaced.

    Further, anyone who has never been to Burning Man has essentially zero place in this discussion. Many who do go regularly will still disagree with me, and that’s fine, but they at least have a basis for understanding what the argument is really about.

    I may not love everything that Burning Man has become — heaven knows I was vehemently against many of the changes and new rules over the years. But I when I buy my ticket, I agree to their rules. And that should end the discussion righ there.

    You don’t like the rules, hold your own festival.

    • Antinous / Moderator says:

      Further, anyone who has never been to Burning Man has essentially zero place in this discussion.

      Yeah, I feel that way about Guantanamo, too.

  94. Anonymous says:

    Okay I’m an outsider to all this. Let me see if I understand what’s going on…
    BM has a EULA that entitles it to claim copyright on all photos taken at the event. This will allow them to take action should any image be used for commercial purposes. So even if the photographer, and all the participants in the photo agreed to sell it for commercial purposes, BM still has the right to claim that copyright and stop the sale or take action against those that sold it.
    Is that right?
    Sure, BM are claiming it doesn’t stop people sharing photos creatively or whatever. But what’s said now doesn’t mean they won’t do the above right? (sue someone for making commercial profit from an image taken at BM)
    So I can see how photographers who are looking to make money from the photos taken there would be annoyed at this. Equally I see why ANYONE with a camera would be angry that what they took has the possibility of being claimed as someone else’s IP. But in the end, it is an event and by attending you are indeed agreeing to the rules. Don’t like the rules? Don’t go, so you don’t sign up to them.

  95. IWood says:

    So…

    um…

    [dammit, resist]

    ..what’s…her…fair use?

    [agh, I'm such a trog]

  96. JimEJim says:

    @Malgwyn:

    So again, how is your comparison of Comiccon that much different from BM? The rules are still there in both places that give them the right to restrict what goes online, if they so choose.

    BM lets plenty of people put their photos and video online also. I can go to youtube right now and find tons of videos of the fun. The rule is just there to enforce those extreme cases where they have a problem.

    I still tend to agree that some compromise should be made to make the language of the rule more clear, but I’m not about to claim that BMORG is some evil corp trying to screw people over, as some seem to think.

    They have a rule that is a bit far reaching which they haven’t actually abused yet. Not ideal, but not the end of the world yet either. They also seem pretty open to revising said rule if people can offer a good alternative.

  97. Anonymous says:

    So it’s Halloween
    And you feel like dancin’
    And you feel like shinin’
    And you feel like letting loose

    Whatcha gonna be
    Babe, you better know
    And you better plan
    Better plan all day

    Better plan all week
    Better plan all month
    Better plan all year

    You’re dressed up like a clown
    Putting on your act
    It’s the only time all year
    You’ll ever admit that

    I can see your eyes
    I can see your brain
    Baby, nothing’s changed

    You’re still hiding in a mask
    You take your fun seriously
    No, don’t blow this year’s chance
    Tomorrow your mold goes back on

    After Halloween

    You go to work today
    You’ll go to work tomorrow
    Shitfaced tonight
    You’ll brag about it for months

    Remember what I did
    Remember what I was
    Back on Halloween

    But what’s in between
    Where are your ideas
    You sit around and dream
    For next Halloween

    Why not everyday
    Are you so afraid
    What will people say

    After Halloween

    Because your role is planned for you
    There’s nothing you can do
    But stop and think it through
    But what will the boss say to you

    And what will your girlfriend say to you
    And the people out on the street they might glare at you
    And whadya know you’re pretty self-conscious too

    So you run back and stuff yourselves in rigid business costumes
    Only at night to score is your leather uniform exhumed
    Why don’t you take your social regulations
    And shove ‘em up your ass

  98. arkizzle / Moderator says:

    But surely that is the right we all give up on a daily basis.. in the hopes of having a free and lively photographic record of humanity.

    If we expect to be able to photograph anything else in the world (commercially, artistically or otherwise), how is this any different?

  99. hohum says:

    Wait, how is that the issue?! I thought the issue was that they claimed ownership of all of your photos… Am I reading this response right? Basically something like ‘we can’t support CC because that would suggest the photographer owns their photos which is true for the world outside of Burning Man but not the world inside Burning Man, and we don’t want to address that even a little bit?’

  100. Anonymous says:

    Boy, you guys are serious about seeing some old man dong. Tell ya what, have your own festival. Put a pile of forks and one hammer ontop of an ikea flatpak box and cover with gasoline. Eat 4 hits of E and paint your genitals. Then you can take all of the pics of “anal fisting performance art” you want, because it is YOUR yard.

  101. ASIFA-Hollywood Animation Archive says:

    Why does burning man corp. feel the need to administer the licensing rights of other people? If a private individual or a copyrighted artwork is photographed and used for commercial purposes, the company licensing the photo should contact the person or copyright holder to negotiate a fair license fee, not burning man corp.

    By signing away the rights to burning man corp, an individual is signing away the rights to be paid for the use of their likeness or copyrighted work. Burning man corp isn’t protecting people, they’re exploiting them.

  102. missingegg says:

    It seems like many of the anti-burning man commentators have the attitude that rights to photos should rest with the photographer. But an important part of what burning man does is protecting the subjects of photographs.

    I’m pleased that a few people have tried to advance practical suggestions about how burning man’s T&Cs could be modified to address peoples concern. But any proposal should include protecting photographic subjects from photographers who misuse photos they’ve taken. And that protection should extend to cases where it’s impossible to locate the subject of a photo that’s being misused. And commmerical use is far form the only form of misuse that would be objectionable to many burning man attendees.

    One of the things I love about burning man is the openness to feedback from the community of burners. I take Action Girl at her word when she says she’s very interested in constructive suggestions for a better legal framework. If you can come up with suggestions that meet burning man’s needs, they’ll listen. If you just call them fascists, they’ll (rightly) ignore you.

    Commentators like ASIFA seem to be primarily concerned about the “right” of photographers to own the photos they take, and possibly make money off them. In point of fact, there is no such “right” in the american legal system. As witnessed by burning man’s successful use of it’s T&Cs.

    Personally, I’m pretty happy with the balance that burning man has struck. It’d be nice if the T&Cs evolved to protect people from burning man becoming a less benevolent dictator. But until someone can find a perfect balance, I’m content to have them tilt towards excessive claiming of legal rights.

    For now, if you don’t like it, don’t go. Or better yet, create an even cooler event. I’ll happily go and support you if you manage it. As will many of the people who run burning man today.

    -Michael

  103. Anonymous says:

    Comic-con is a commercial convention with the tradesmen renting booths for the main purpose of SELLING things. Of course they love having their pics spread throughout the world: its free publicity and free advertising.

    I’m going to BM and frankly, I don’t know a soul who is going there to sell anything (seeing as that exact thing is against the rules AND the spirit of the whole shebang)

    Speaking of commerce, @45, you wrote
    “Nobody’s forced to go to Burning Man and expose themselves, post artwork or otherwise be in open view of other people. If you don’t want yourself or your artwork to have any chance of ending up in a car commercial, titty tape or other commercial use, don’t go to Burning Man. Otherwise, suck it up and/or realize that it ultimately is not a big deal at all”

    Nobody’s forced to bring their camera and take pictures the whole week. If you don’t want your photos being restricted, then don’t take them at Burning Man. Otherwise, suck it up and/or realize that it ultimately is not a big deal at all.

    See how that personal responsibility thing goes both ways?

    Someone earlier (can’t remember who) mentioned that a photog should be able to have the right to sell their pics of BM. Um….no they shouldn’t. NO ONE gets to peddle their wares there. Just because their wares originate at BM doesn’t suddenly change the nature of the “no commerce” rules at BM. The participants who are MAKING BM an event worthy of being photographed are bound by those laws. Why should those who are voyeurs to that exist outside of the rules the rest of us are bound by? Its supposed to be expression for the purpose of expression. The artwork is destroyed at the end. If the same were true of the Photog’s artwork, then I might feel differently….but they want the freedoms that the free expression at BM gives, without fully participating in what that means? Not so much.

    I know I’m not in a position to go after big kids in the playground who might misuse my image for their own gains, so I’m glad BMORG is at least trying to take the reins here. I’d like to find better ways….but since ultimately no commerce is supposed to be taking place on the grounds, I feel that includes photographing the results of what others are doing not being sold. If that means BM owns it, then that’s the deal.

    If the only reason a photog wants to take a ppic is the potential to sell it, then they’re probably going to the wrong festival in the first place.

  104. Anonymous says:

    Asifa, Andie Grace here. We do not use these systems to license peoples’ work to other parties, ever.

  105. Anonymous says:

    @Nina

    I wouldn’t be so sure that no advertiser would copyleft their commercials. They *want* their commercials to be shared.

    Burning Man doesn’t want to bet that no company, ever, will want to release their commercial under a share-alike license. Seems reasonable enough.

  106. Pyrokinetic says:

    I call bullshit. I make a living in the stock photography industry, and if I took a photo of someone’s art car at burning man to be used in an ad, I’d need a property release from them. If it was a person, a model release. If it was a photo of an existing piece of art, another release. If you’re selling images or using them in a commercial context, you need permission left and right. (that’s actually the idea behind creative commons)

    The line is drawn — specifically for that reason — when it becomes undeniable that the car in the ad is recognizable. Burning man or not, I can’t take a picture of a car and sell it for stock photography. Or a person at burning man.

    An example: I can’t take a picture of a Jaguar driving down a road and expect to sell it commercially. Period. I can take a photo of a _guy_ driving a _car_, but I have to make sure that I’m composing the shot so that any overt styling makes the car generic. I’d also have to photoshop out any logos or trademarks. And I’d need a release from the model. Even if it was at burning man.

    Now, I wander around town with a camera around my neck all day, every day. I take tons of photos of people and things and places that I don’t have a release for and that I won’t make money from commercially. Now, I can sell those photos for an editorial use, or I can make a coffee table book and sell that, and that’s totally legal. If that’s what burning man has a problem with, that’s total bullshit.

    But, in the argument they’re making, they’re already legally protected. Or, rather, the people-who-built-an-art-car-and-would-rather-it-not-be-in-an-ad-types are already legally protected, whether burning man steps in or not. So I don’t see why it should be a problem. Unless they want to be the arbiters of taste, which I think is pretty obvious, and I totally agree with the EFF on this one.

  107. Rider says:

    What happens if a take a picture of the “Art Car” driving to burning man. Really silly rebuttal.

  108. Jason Olshefsky says:

    A running meme in the comments seems to be that people think Burning Man is downtown Chicago. From a rights-of-use kind of thing, it’s more like a movie theater. Would the people crying foul say the same thing if it was concerning photographs inside a movie theater? If the movie theater owner said that you can’t take pictures inside the theater, would you be screaming that it’s your right to take pictures of whatever you want?

    Burning Man is a private event that is about participation — that is, specifically not spectating. Photography is observing and recording: spectating. It’s generally discouraged, and put under a microscopic eye. Being a spectating photographer at Burning Man is like going to a nudist colony and claiming that you should have the right to stand around fully clothed and take pictures.

    Lastly, I think our society (America for me) needs to fucking grow up. Prancing around in a pink tutu on vacation has nothing to do with your abilities as a teacher, lawyer, or politician. The notion that an employer can reject you as a job applicant (or fire you from employment) because of activities that do not impact your job performance is puritanical prejudice and nothing more.

    —Jason Olshefsky

  109. Stephen says:

    BRACHIATOR -

    That does sound like a good solution. The two questions are: do BMO’s lawyers think it would work, and would EFF be satisfied or would they continue their action. Personally my guess is EFF would continue their action and deny that transfer of copyright was ever the issue.

  110. mdh says:

    and what if Darth Vader called the Mooninites on YOUR CELL PHONE????

    seriously, obfuscate much EFF?

    The question is not photographers claiming rights over others work, THAT is another matter that is just as true on the streetcorner as on the playa.

    The issue at hand is BM’s claiming rights over your photography on the playa.

    Maybe they have a right to do it, but they have no place being that way about it.

    For my part, photographs are a critical memory aid. Being denied them is hurtful to me in ways you need to imagine.

  111. Stephen says:

    Assignment of POA also has the benefit that it may be a stronger legal theory than assignment of copyright. But here’s the quote from the EFF that makes me think they won’t be happy until any gun dealer can use crowd shots from Burning Man in their ads:
    “Using take-it-or-leave-it fine print to assert veto rights over online expression is no way to promote a ‘society that connects each individual to his or her creative powers.’” This says that EFF objects to any EULA that restricts filming rights.

  112. darth_schmoo says:

    MDH (#45):My concern here is that there appears to be a lot of potential for overreach with this action – all in order to stop a few bad actors and placate the people whose inner prude is only silenced for that one week out of the year.

    Inner prude? What about their inner “I work for a prude, and I could get fired?” Or their inner “I work as a teacher or run a daycare, and I could get fired?” Or their inner, “I don’t want my bare butt paying some porn site’s hosting fees.”

    Disagree with the policy all you like, but having to make compromises with the default world isn’t a moral failing.

    I would also point out that, without this policy, the whole event would probably end up morphing into an elaborate staging for porn shoots. If that happened, it would certainly make me question my decision to go.

    grimc (#55): On a side note, no car company would use footage from BM. If they wanted an artcar or whatever, they’d have no problem paying a director to create it themselves.

    Sure, Toyota Motor Corp. is going to follow the rules to the letter. Manufacturing a car is a huge, high-capital activity, with billions of dollars involved. They’ll obey their demon lawyer horde.

    But for every car manufacturer, there are probably a thousand car dealerships, and a couple thousand used car lots. You’ve seen the quality of their commercials. So sure, there are people in the auto business who might do what you say they cannot do.

    #58 posted by pereubu (#58):
    C&D/takedown notices of unauthorized work,”we’re doing it for *your* protection, man,” yeah, we get that. No question there.

    It’s the, “Your photos? Oh, now they’re ours.” That’s the issue that’s getting photogs’ backs up.

    You kind of illustrate BMO’s reasoning right there. You say you’re okay with them using the DMCA takedowns. But they can only issue those notices if they are the copyright holder. Otherwise, they have to go through a long and laborious trademark infringement suit (which they may lose, if it’s just ‘naked person in desert’), or figure out who the heck took the picture (they’ve only got 40,000 suspects), contact that person, and convince them to allow them to file suit.

    Jerril (#107): EFF isn’t fighting for “Gun companies” and “pornos” to go shoot commercials at BM – BM is 100% entitled to ban them from entering and to kick them out if found sneaking around. Copyright has nothing to do with it.

    If that’s the only recourse, it doesn’t present much of a disincentive to someone looking for commercial footage.

    As to your greater point, that BMO might someday morph into a Force of Ultimate Evil, you’re absolutely right. I think they should expand their language to include the things you are expressly allowed to do with the photos, and the things which BMO expressly will not do with your content.

  113. Wingo says:

    Quite a long read – admittedly I only got about halfway through.

    But to me it sounds like a large part of the issue is so that people feel comfortable getting naked without having to fear ending up in some kind of pr0n. Which is understand-ish-able.

  114. Anonymous says:

    IANAL, but don’t see anything in the Creative Commons non-commercial license “legal code” that says only the photographer (or original author) can grant/enforce the license… Not sure what BMO is talking about. Like #94 says, if the copyright is being assigned to BMO, BMO can do whatever the hell they want – license it, use the DMCA to shut down other uses, etc. It’s really just a “no pics of naked girls” clause, see #50 or keep your clothes on. Or don’t allow the Girls Gone Wild bus (if there really is one…) Not the most politically phrased criticism by the EFF, but still, EFF +1

  115. mdh says:

    Asifa, Andie Grace here.

    The accounts are free. Sign in.

  116. dwdyer says:

    The most fun is in the paragraph that says if you put your personal photos on the web, if BM notifies you to take them down for any reason, you have to do so. You have to place notices on such a site that they are for personal use only, and that people who visit your personal photos are prohibited from downloading or copying them.

    And if someone does download or copy them, you assign all rights to the images over to BM and appoint BM as your attorney-in-fact to go after the bastards who downloaded your personal use photos.

    “Trust us, we’re only going to use our absolute power for good.”

  117. happyez says:

    I enjoy this sort of (quasi) legal tussle over something dear to peoples hearts (and my own).

    I envisage some solutions:
    - start/join those already pursuing BM to change their EULA. Being a non-democratically organised and administered event, I assume success is somewhat limited in this area.
    - accept and enjoy a survivalist/socially bonding sub-cultural event which creates its own world within its various sub-cultures geographically from populous areas (a bit like Canberra Australia being the capital WAY outside the 2 biggest cities)
    - create your own festival. BM only exists (imho) because a large number of people, for one reason or another, have delegated a group of people under the BM banner to organise the macro-logistics, so they can have fun creating their own micro-logistics.
    This is the point that strikes me the most.

    I love creating/ pioneering things, and to me, a better solution would be to start something else.

    This reminds me of Cirque du Soleil. The last remaining founder is Guy L. He started off, like them all, broke and living in a sub-culture. If I look at a street performer breathing fire (anywhere in the world), and unable to pay his/her rent, I think of Guy c.1982. As CDS grew, so did what really lay in his personality came through (poker player/ fast cars/ limos and private jets/ private parties + an authoritian business structure, but financially successful) So nothing, to me, really special (above others in socity) about poor circus artists, anarcists, goths, BM-goers etc.

    So what is to stop the next BM becoming exactly the same as this BM or as the next CDS? I imagine that the next BM sets *strict* laws that are to EFFs (and the dozens of other similar bodies in the other areas of society) likings from the very start, and NEVER change them. Stay completely democratic, and grow to a 50-70K size festival in a harsh environment, or 200K in a pleasant environment. Then, we really have some teeth to show the BMorgs just how unenlightened they are.

    But up comes the sharks and GGW crews that find the weak links and exploit them. Then we see how strong these pure rulings are ….

    Thanks for reading my ramble.

  118. Anonymous says:

    BMCORP has no right to enforce unenforceable rules that deny ownership right that BMCORP has no claim to. They’re not equipped with the authority – they are merely stewards of the TEMPORARY USE of FEDERAL LAND, which, if I recall correctly, BELONGS TO US, not to BMCORP.

  119. mdh says:

    It seems the fear of photography is based on the fear of damage to reputation?

    I propose a simple flowchart.

    Do you fear being ‘known’ as someone who gets nekkid? YES/NO

    YES – Then don’t get nekkid in public

    NO – Carry On.

  120. Antinous / Moderator says:

    Example: find me a participant who would vote “yes” on seeing a video or photo of the Man burning, or their own art car or sculpture, in a car commercial. You probably can’t.

    In the land of reality television, I doubt that it would be very hard to find lots and lots of people who would be quite happy to have their art projects and their naked asses show up in a car commercial. That question/answer reads like something from a push poll. It’s trying to prove that every single person who attends Burning Man is soooo hip and edgy and transgressive that they must hate cars and coca-cola and corporations. I don’t really buy that.

  121. Anonymous says:

    If people want a festival that is like burning man except for this copyright restriction, why don’t they start one for themselves? Why are they trying to force burning man to change their festival.

    I suspect the reason is because they know deep down that it would suck. Partly (but not exclusively) because people would not be as keen to get nekkid.

  122. Thalia says:

    MDH @ 13, I propose an alternative flowchart:

    Do you think you may ever be involved in a situation where pictures of you naked will be a problem? (employment issues, divorce issues, child custody issues, other legal problems, political involvement, activism)?

    No – You’re either young, stupid, or both.

    Yes – Then don’t let people take photos of you naked, ever. Get naked anyway. Just because you realize that naked pictures can be a future problem doesn’t mean you should constrain your life. Just make sure you get naked only with people you can trust not to sell photos of you.

  123. Anonymous says:

    It’s also worth noting that Burning Man’s lawyer, Terry Gross thinks that EFF has a “purist view” that everyone should own everything that they create. Gross was originally EFF’s first general consul.

  124. jonathan_v says:

    @6

    I call bullshit too.

    Just like you said — one would need a model release and to clear any trademark rights in order to use something in advertising… unless they wanted to get sued.

    But I’d also go a step further and say that BM could have put a less-offensive and actually-well-intentioned contract clause into the the ticketing that says “You can not use any photos taken during the event in advertising or to market commercial goods, under penalty of $x.”

    Instead they chose that overreaching clause.

  125. dwdyer says:

    #12: They would have the right to only allow photography by permit and control all rights to all images, or deny photography outright if they wished to. Just as if you were at a [insert pop star here] concert.

    It’s a big stick. They say they won’t use it for bad, but it’s still a big stick. At least they’re not like the NFL and claim the rights to accounts of the event.

  126. arkizzle / Moderator says:

    The accounts are free. Sign in.

    Damn Hatter; short, sharp, succinct!

    We may have to requisition that phrasing for the anonymous-comment box..

  127. Anonymous says:

    In addition to protecting the naked people who will and HAVE been exploited for porn, it is the Burning Man culture that BM is trying to protect.

    Surf culture was exploited quite a lot as advertisers would try to sell their product with associations of freedom, sex, and adventure that surfing carried by placing photos of anything surfing-related in their ads. For surfers who were deep within the culture, there was a sense of desecration going on.

    Burning Man is at the risk of something similar. It’s truly a special event that, without protecting its logo and very recognizable images of weirdness in a desert, would quickly become a target for all sorts of commercial exploits. Just picture the latest Vogue fashion shoot.

    Burning Man is in the business of setting up the wildest outdoor party in existence. If it was in the business of selling media, I would feel entirely different about these rules.

  128. Anonymous says:

    As I see it, the EFF is talking about the abstract, ideal issue and the BM folks are talking about the practical, based on experiences they have dealt with.

    As a burner I am happy with the current rules. I am willing to believe, that the folks who run this event are nice folks and I am willing to trust them. The world is run by people, not lawyers.

    Some people have tried to force their standards upon us, saying don’t go to Burning Man. Basically these people are saying that if I want to get naked, but don’t want to see my pictures on the newspapers (editorial use), I should just shut up and wear my burkha. I would like these people to take a moment to think about this. Why is the right of somebody to take and publish pictures of me more important than my right for privacy?

    Traditionally the EFF has cared also about peoples rights for privacy and at the Burning Man the various rights contradict and there is no obvious solution (besides disbanding the event).

  129. st vincent says:

    #59: Things change, the Oregon Country Fair (#58) sure as heck isn’t what it used to be. Back in ’82 I drove to OCF to see the Dead, camped in the parking lot, spent the whole night drinking, singing and passing the, um, peace pipe around a big fire. That’s ALL against the rules now. Makes BM sound pretty darn free.

    Thus, I’ve often heard the OCF referred to as a “hippy concentration camp”.

  130. mdh says:

    My favorite part was the huffing and puffing bit about “commercialist wolves”.

  131. darth_schmoo says:

    #94 seems like an excellent, positive suggestion. Everyone should read it, and I’d love to see ActionGirl’s comments on the idea.

    #109 – I think you’re mischaracterizing the nature of the “green product event” back in 2007. My understanding was that the hawkers in question weren’t allowed to mention their company name, weren’t making sales, and weren’t paying for the privilege of being there. It was about giving people ideas, and demonstrating what is possible, not selling things.

    If you’ve got better information, please share.

    I think your position also presupposes that the ever-expanding rules are nothing but a raw power grab. But the continued existence of the festival depends upon them maintaining good relationships with the BLM and the surrounding communities. Rules about when and where who burns what are necessary.

  132. Church says:

    “I can’t take a picture of a Jaguar driving down a road and expect to sell it commercially.”

    Yes you can.

  133. actiongrl says:

    {{“It’s the, “Your photos? Oh, now they’re ours.” That’s the issue that’s getting photogs’ backs up.”}}

    The assignment of that copyright is about giving us the ability to enforce against the unwelcome use of the image, though, not the ability to start making postcards of your shot and selling it. It’s a protection from what I hope is an entirely academic scenario, really, because when something like this actually happens it’s usually because someone’s work or expression have been inappropriately exploited.

    Generally speaking, the photographers that attend are a wonderful lot of well-intentioned and respectful creative contributors, but maybe it’s the only thing standing in front of us and a free-for-all. I used extreme case examples; there’s a lot of in between and grey, there.

    We’re talking about a phenomenon that has remained relevant and compelling for 25 years, so it’s hard to argue that it hasn’t helped foster immediate self-expression in a way that may not be available in a whole lot of places. I’m suggesting that might be worth the suspension/adjustment of our usual rights to document it for posterity.

    And really, it’s an event that’s one week in an otherwise barren, inhospitable desert. I think we can spare it for a moment. Look online – it’s not like there’s a shortage of lovely public record about it or of people sharing their own experiences and images. We don’t want to stop that.

  134. mdh says:

    arkizzle – perhaps you see the sparkle of irony in someone speaking for the BMO on this particular matter without following the proper and minimalist Boing Boing community procedure to show identification to (and thus respect for) the other community members, all while on the BB playa.

    This is allowed by BB, because BB is big about these things, and therein lies the irony.

  135. mdh says:

    church, he meant “your Jaguar”, which he can’t do.

  136. Antinous / Moderator says:

    it is the Burning Man culture that BM is trying to protect

    That sounds like a euphemism for ‘protecting their brand’.

  137. rebelrob says:

    Howdy,

    I can def. see the bullshit argument here clearly.
    On the other hand, let me give you an example of what happened to a mate recently.

    Walking down a central area in Melbourne, he looks up at a _massive_ billboard, we are talking one huge mother fucker, maybe 20 meters wide. He paused for a moment, processing what he sees. His face is plastered up there along side his ex girlfriends while they were at a concert. The ad is for an alcoholic drink. He has NFI how this happened. I think his girlfriend said “ok” to let the photographer take their photo. I believe he sought some legal advise and basically the response was it’s not worth going to the effort to get any compensation, it wouldn’t be much. The photo was all around Melbourne, part of some advertising campaign for this alcoholic beverage company.

    Did he get bad advise? Could he have followed this further? He was not on talking terms with the Ex, but even so if he did not give discreet permission for his face to be plastered around a whole city, I’m sure there are compensations.. Unless the law is different here in Australia..?

  138. Anonymous says:

    “And remember folks, the BMORG is not run by a bunch of cocaine-sniffing power-hungry corporate suits”

    Well you were right about the suit part.

  139. TheNadreck says:

    I read over the BMO response (and the original EFF post), and felt that it completely talked around the core issues that the EFF was bringing up. It reads like corporate non-speak, and makes a number of attempts to show how “uncorrupted” the organization is, that there is no need to worry. A few bits that caused me to pause:

    1. Want proof? We’ve not engaged in trying to censor or remove certain third party sites containing criticisms of Burning Man using our trademarked names (some of these URL’s even contain “Burning Man” alongside derogatory phrases, but they’re obviously social commentary, and of little concern so long as they remain free of either violations of privacy or commercial content). We’ve equally never intervened on any of the many (hundreds? thousands?) of Burning Man related debates or criticisms on sites like Tribe.net or Facebook.

    This is not proof that you are a benevolent organization. Derogatory or not, unless it’s libelous or could be argued to confuse others as to who the rights-holder is, criticism is protected.

    2. Another important fact to note: despite having this policy in place for years (this policy is far from new), the EFF, when it comes up with the parade of what Burning Man could do under the strict terms of our photo policy, has no examples of anything that Burning Man has done while enforcing the policies that it claims are wrong. That’s because, as I discuss here, we work hard to ensure that these policies are narrowly enforced just as to serious violations.

    This misses the point. The point is that it’s a rights-grab that you expect your participants to accept on the assumption that you will REMAIN a good organization and not do evil with such a blanket policy. If your policy is narrowly enforced, then it should be narrowly written.

    3. Earlier in 2009 Burning Man’s Executive Committee undertook an examination of these issues, and we began to talk about evolving the language and the spirit of those agreements to more accurately reflect the changing digital rights landscape, while retaining our right to protect our participants and the spirit of the Burning Man event.

    The “digital rights landscape” has no bearing on the discussion at hand. There are sets of rights already established for both the photographer and the subject of the photo. Do not try to excuse a rights-grab by claiming that it’s the fault of living in a digital world. BMO could have achieved their stated goal simply by reserving SOME rights, which has been done at events of varying sizes (including larger than Burning Man) to fair success for a number of years.

    A purist “no-nanny” philosophy may not be reasonable, but I argue that the current overreaching policy is worse. You have IP lawyers on staff already; how hard would it be to craft a policy that allows creators to retain their rights for non-commercial use, but requires BM, as the event in question, to also sign off on commercial use? This would provide protection against commercial exploitation, and prevent rights hoarding that could potentially be abused in the future.

    IANAL, I just think it’s ridiculous that a group that prides itself on thinking outside the box would resort to such a draconian policy.

  140. actiongrl says:

    Hatter, I apologize. I definitely posted in a hurry – got a city to run off and build. Logged in now.

    The thing is, if you can read to the end (I know, I know – I’m longwinded) you’ll see that what I’m saying is, “This is what we’ve done in the name of protecting our event as it has grown up. Now what? Who’s got more info for us?”

    I’m absolutely interested in hearing suggestions for how we can evolve this, but I also believe the controls we have enacted for the brief weeklong existence of our city have helped an important culture to flourish. (You don’t have to agree, but you also don’t have to show up and try to make a movie about it, either.)

    I just feel it’s so pat to impute a bad motive on our part when our motivation’s always been a love of expression & its preservation. Our participants come first – but listen, some of them are photographers! I work with and support photographers and their rights too. I’m genuinely looking for the next leap forward here.

    I’m listening. We’ve said why CC probably wouldn’t work for our private event, as it exists – tell me otherwise, or show me another model. I want to evolve this thought process or I’d not have bothered to respond to the EFF’s criticism in the first place. I mean that!

  141. mdh says:

    Hmm. It is a heated discussion, and even the moderators tend to be immoderate.

    You are mistaking their role. They’re not referees.

    Please see the Moderation Policy linked at the top of every page if you wish to better inform your opinions of them.

  142. Anonymous says:

    So… made it through comments and didn’t really find any suggestions… so I’ll make one.

    I see a solution as having multiple parts.

    Part one: Acceptable Use Terms. Make a condition of attendance that all participants follow certain standards of morality. Some of those being appropriate and non-appropriate uses of photography.

    Part two: Delegation of rights. Participants in burning man will allow burning man to act as their agent if items in conflict with the acceptable use terms are found. Burning man will give best effort to try and involve all relevant parties, but not being able to do so will not limit them from acting.

    Note: This should help with the CC-noncommercial doesn’t give us any grounds thing.

    Part Three: License terms and conflicts of use. Find a license that aligns with the previous 2 clauses which give burning man the grounds and power it needs to protect its participants and image, but also does not seek to “own” material for the sake of DMCA convinience. If you are truly acting in spirit with most users wishes, then you’ll never have to get to the last situation.

    Part four: When burning man and the owner of contested media disagree about its proper usage then the acceptable use policy is agreed upon to be grounds for legal decisions on use. Alternatively the hot thing to do is to ask photographers to participate in binding artbitration. There is a lot of flexibility in this and you could even say that part of the decision group include burning man participants (almost like a panel of peers). Then whatever the arbitration decides is binding.

    Anyways… theres some ideas to kick around as well. Lawyer I am not, so I apologize if I’m breaking or ignorant to conflicting precedent.

  143. arkizzle / Moderator says:

    Anonymously, does seem a strange way to come and defend one’s stance.

    And BB seems the perfect place to set the record straight :)

  144. Anonymous says:

    ” #62 posted by actiongrl, August 15, 2009 7:20 AM
    We’re talking about a phenomenon that has remained relevant and compelling for 25 years, and an event that’s one week in an otherwise empty desert. I think photography can spare it as as a temporary (semi)protected zone. Look online – it’s not like there’s a shortage of lovely public record about it.”

    Yeah, we get it. You are doing it to protect people at burning man. But what you don’t get is that you are using what might be called fascist techniques to do it, with an ends justifies the means argument. The idea of a private company claiming copyright to photographs created by other people for purposes of censorship is fascist on its face, regardless of the claimed benign goals.

    Let’s look at some alternative ELUA’s BM could put on their tickets. How about giving burning man search your house and seize all of your photographic and computer gear if you post pictures they don’t like? Or, perhaps, give BM the right to garnish your wages in perpitutiy?

    Regardless of BM’s goals, and regardless of the convenient expediency of their method, claiming IP of other people’s photographs for censorship purposes is an unacceptable perversion of copyright law.

  145. Anonymous says:

    oh good grief. “fascist techniques”. does godwin’s law apply here?

  146. arkizzle / Moderator says:

    ActionGrl,

    Glad you dropped in :)

  147. Anonymous says:

    As a participant for a mere ten years, I appreciate the freedom from the rampant professional photography that would otherwise exist there. Last year a photographer and a nude model did a shoot in the middle of our camp without asking permission. Annoying / amusing. He was only photographing his model as far as we could tell, so we left them alone. But none of us wants to end up on a Burners Gone Wild video.

    While their contract gives them the apparent right to use your photos for their own nefarious theoretical postcard production, THEY DON’T. Same for their apparent right to make you take down your vacation photos of you and your friends dancing to oontz-oontz-oontz music in someone’s geodesic dome. And it’s not just because a bunch of reactionary self-proclaimed copyfighters who have never been to the burn declaimed the practice.

    And remember folks, the BMORG is not run by a bunch of cocaine-sniffing power-hungry corporate suits. They are mostly a bunch of intelligent geeky freaks like yourselves trying to handle a beast that has evolved to massive proportions over the years. They get paid precious little or nothing to build a city in the desert where 50,000 people live for a week, and then these people stay and clean up every speck of trash from 5 square miles of dust.

    Thanks Andie and all the rest of you who make the Burn such a special place for all of us. Don’t let a bunch of well-meaning naysayers get you down. There is no map for where you have been and where you are going, and you’ve done a remarkable job of getting us this far.

  148. Anonymous says:

    OMG!!!! A PHOTO OF BURNING MAN MIGHT BE USED IN A CAR COMMERCIAL!!!!! OMG!!!!!!

  149. ASIFA-Hollywood Animation Archive says:

    If I play hooky from work and go to the ball game and someone takes my picture in the stands and my boss might see it, should I expect that the ball team own the copyright of every photo taken during the game so I can be protected from having my transgression revealed?

  150. Ian Holmes says:

    It’s all about the DMCA, right? The Burning Man corporate management finds it a useful tool, and EFF are mad at them for not being PC enough.

    So, it’s all about whether the badness of DMCA is outweighed by the goodness of Black Rock City.

    Not endorsing either side really — well, on balance, I think the badness of DMCA is marginally worse — but the goodness of BRC is pretty fragile, so. Whatever.

    It’s amazing how many words are taken to say all this, though. (And that verbosity is the TRUE legacy of Larry Harvey. ;-)

  151. JimEJim says:

    ASIFA @ 116:

    Well, to turn your question around, why should the EFF act on anyone’s behalf then either? There is no individual currently involved that asked the EFF to go after BM for specific abuses, but the EFF considered this important considering their mission.

    There’s nothing inherently wrong with an organization that looks out for its interests or the interests of its participants. The debate here is about the method being employed to accomplish the goal, and the ownership assumed.

  152. Beelzebuddy says:

    I see this fight as a dispute between Good and another Good.

    Burning Man rep, the issue people are having is not that you are taking steps to protect the people who go to Burning Man. The issue is that you are doing so to the detriment of the people who go to Burning Man. You’re patronizing them by insisting that they cannot be trusted with their own actions. That kind of heavy-handed control is exactly why you’re in the damn desert to begin with instead of Baker Beach. Your efforts to control what is done with Burning Man have blinded you to why it is done. You’re acting like the man, man. Pull up.

    Listen to the EFF. They’re the good guys. Start up some dialogue with them with an open mind. I’m sure they’ll understand – hell, half of them probably go to BM each year – and they deal with exactly this kind of thing all the time. It’s what they were founded to do. And you’re both in the same city, fer crissakes, go get some Tu Lan and hash this out. And for your sake do it quickly. Every time stories like this flicker across the intertubes, another batch of hipsters quit in disillusionment.

  153. Anonymous says:

    Nice corporatist reason – must preserve our brand name so we will invasively take everything for ourselves. Sounds similar to not being able to take pics in malls or whatever else.

    Maybe he should just deal with the fact this stuff will get used commercially and just disavow it. Hell Woodstock photos are used in ads all the time, and nobody cares.

  154. afb says:

    Sounds like the issue is whether the BM organization has the right to override the decisions of the _photographer_. The photographer is still required to get permission of participants to take their photos and photos of their cool projects.

    However, several folks have noted that individual participants have a hell of a time suing to get their images out of a particular video, etc. The more focused and well-resourced BM organization perhaps has a role to play in preventing any kind of exploitation.

    Since it does not do a lot of personal data collection ( in the spirit of freedom ), it would be quite difficult for the BMO to track down individual participants to act as plaintiffs in a case against a photographer. And I, for one, prefer it that way.

    On the other hand, the EFF and other interweb freedom fighters are persuaded that the DMCA is pretty much pure evil. Any use of it for cool purposes legitimizes it and decreases the chance of it getting thrown out as a giant, glaring error.

    So. Lawyers. Got a license that allows the BMO to veto inappropriate use without using crazy berzerko legal frameworks? Is there a less-invasive way to achieve these goals?

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