August 14th, 2009  |  Filed under Digital Rights

“Snatching Digital Rights” or Protecting Our Culture? Burning Man and the EFF

August 14th, 2009  |  Filed under Digital Rights

On Wednesday, the Electronic Frontier Foundation (EFF) issued a criticism of Burning Man’s ongoing efforts to protect the rights of our participants, and our efforts to forestall the creep of commercialism into the foundations of our culture.

Image by brillig, 2008

Image by brillig, 2008

Burning Man deeply respects the efforts of the EFF, and frankly, would ourselves like to embrace their opinion – but we don’t think the issue is as simple as Corynne McSherry would have you believe. Just like the EFF, we honestly seek to think outside old paradigms and boxes of “creative property” in the digital age, but we view Black Rock City through a more complicated lens, and our view of issues facing creative ownership is not rendered in extremes of black and white. To us, the rights of the individual participant to privacy while in Black Rock City in this unique environment for free expression — and our philosophical desire to maintain it out of reach of those who would exploit that expression just to sell cars or soft drinks — happens to come first.

In fact, there are but two essential reasons we maintain these increased controls on behalf of our community: to protect our participants so that images that violate their privacy are not displayed, and to prevent companies from using Burning Man to sell products.

Livingbrush Woman Art by Scott Fray, Image by Bryce Hunt

Livingbrush Woman Art by Scott Fray, Image by Bryce Hunt

As the manager of the volunteer team tasked with expressing and enforcing Burning Man’s image use and trademark policies (essentially, the very “finger” that’s resting on McSherry’s dreaded DMCA takedown trigger), and as an acquaintance to several EFF board members and founders that prowl Black Rock City every year, I find this one-sided interpretation of BRC’s camera/trademark policies a startling disappointment.

The gist is true on the surface: Burning Man retains rather an enhanced level of control over public image use of photos and video from the event than what exists in the public realm. Image use requests and trademark issues litter my desk year-round; more than 50 volunteers and another paid member of our staff support the Media and IP team efforts — and it’s all done precisely in the interest of supporting individual creative expression, not suppressing it.

The narrow view presented by the EFF misses the point of Burning Man’s concern by a wide margin. What’s more unfortunate, it offers no viable suggestions for how to effectively address those concerns – concerns we did not invent in a vacuum, after all, but which were evolved in response to our years of interaction with our own participants (and, as participants, our interactions with camera users at our event).

One could nearly infer that the EFF places the rights of the photographer/videographer (who may or may not have been participants and contributors in BRC before arriving at its gates seeking a photographers’ paradise) above any rights for the subjects of those images, the people and artists of Black Rock City whose creative works and self-expression are on display.

Duck Flambe by Scott Cocking & Ken Beidleman, image by Ralf Ulrich 2008

Duck Flambe by Scott Cocking & Ken Beidleman, image by Ralf Ulrich 2008

Yes, our rules about photography are different from the outside world – but isn’t BRC’s unique environment what makes Burning Man transformative in the first place?

Believe me, I’d love to see a better solution than wading through piles of images to approve certain public uses (and turn down or enforce against others) every year, but after 10 years working with these licenses and observing their utility during the evolution of the digital age, the only thing I’m certain of is that the issue is not as simple as the EFF would like you to think.

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 –  but even the Creative Commons Noncommercial license wouldn’t enable Burning Man itself to enforce against such use, nor the dozens of other similar violations it sees each year because the car company would claim (correctly) that Burning Man has no standing to enforce the Creative Commons license, only the photographer does — and what if the photographer was the one who sold the image to the ad agency in the first place? What if we couldn’t locate the photographer to join forces with us? A Creative Commons license simply does not provide Burning Man the direct ability to enforce against such use – something we’ve unfortunately run up against many times as we work to keep such commercialist wolves at bay.

Further, our current license and approval framework allows us to protect participants from being featured as photographic subjects in ways that might violate their privacy or inhibit free expression in BRC. For example, it provided the very backbone of our case in 2002 when Voyeur Video surreptitiously obtained footage of dozens of nude participants over a span of several years and began releasing the tapes, under the name “Rainbow Fire Festival.” Because of Burning Man’s requirement that all motion video users in BRC sign a Personal Use Agreement  and agree not to exploit such footage publicly for commercial gain without additional permission, we were able to prevail in this matter — not only ending the sale of the Voyeur Video tapes, but legally requiring its producers to agree not to return to Black Rock City.

Painted Girl in the Dust, image by Phil Steele, 2008

Painted Girl in the Dust, image by Phil Steele, 2008

We’re proud that Black Rock City (a private event held on public land) is widely acknowledged as a bastion of creative freedom. I’m convinced that Burning Man participants have greater protection from the aforementioned kinds of exploitation than they are afforded at events elsewhere – but that protection does necessitate the acceptance of some general terms of engagement when it comes to cameras, and the use of logos and marks.

Carrying a camera in BRC bears a weighty responsibility: the cultural expectation that you’ll ask first before you shoot has become second nature to Burning photographers/videographers; the newcomer with a camera seeking a news or documentary story undergoes an intensive acculturation process at the hands of Media Mecca, and signs an agreement that binds him/her to the Rights and Responsibilities outlined for all shooters at the event. Post-event, Burning Man maintains a mandatory review  of all imagery to be used commercially prior to its publication — a time-consuming undertaking, but one that affords an opportunity to monitor for uses of footage and imagery that are exploitative of participant privacy or artists’ rights, or are overtly commercial in nature.

And indeed, Burning Man is compelled (indeed, mandated, really) to enforce its own trademarks (“Burning Man” “Black Rock City” and “Decompression”) from commercial exploitation as well -  but we’ve never indicated any desire to interfere with tagging images with “Burning Man” on sharing sites or talking about it online — nor indeed, to censor anyone from engaging in criticism or negative commentary about the event on personal, editorial, or third-party sites, as the EFF seems to infer. This is where their argument really falls apart.

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.

While we will work our tails off protecting these marks from being used to sell you a widget, we’re frankly too busy engaging with all the good things people say and do around this culture to worry much about a few sour grapes…and often, we learn from constructive criticism and request it from our participants — heck, we’re all Burners here too, so we’ve doled out plenty of it to ourselves over the years.

And when it comes to enforcement, our first approach in an interaction is nearly always just a personal and polite note or call. Most often, when people use imagery of Burning Man without permission for advertising or other overtly commercial purposes, they’ve done so because they’re not aware of our particular policies prohibiting such use — and a friendly conversation with one of our IP volunteers is enough to reach happy resolution. Sure, some folks don’t like it, especially those who haven’t been to the event, but when we’re dealing with a Burner, they tend to be understanding. When the “big guns” of the DMCA takedown notice come into play, it generally comes after we’ve exhausted all other options.

But how often does it happen? In the past year, Burning Man has issued five successful DMCA takedown notices to four independent websites, and one to YouTube.  Three of those were porn-related sites containing nude photos that clearly violated the participant’s privacy; the other two were commercial advertisements for unrelated products (including, in the case of YouTube, a blatant infomercial of a commercial-goods “gift” distributed for promotional purposes at the event, shot entirely without permission).

Granted, we can’t say whether the Burners in those porn site photos would ever have found those images of themselves online, nor had the capacity or means to respond even if they had — but in such instances a DMCA was necessitated because it was clear that there were no model releases on file (indeed, subjects are frequently shot from far away and totally unaware of the camera in photos like these), and the content was presented in a salacious and/or pornographic manner.  We feel strongly that Burning Man can and should be a place where there are controls to prevent this sort of surreptitious exploitation, and we act to incite quick response to protect that privacy.

When an image is used for advertising, we are no less firm, but mindful of the human touch in requesting removal; a DMCA notice is a last resort. For one such site taken down with the DMCA notice last year, the vendor, an outdoor outfitter, used the Burning Man symbol, photos of the Man, and text lifted from Burningman.com on their website to sell camping supplies. Our volunteer team made numerous friendly telephone calls and e-mails, and received multiple promises on the part of the site’s owner that he would correct the violations.  After a couple of weeks with no results, we finally decided that stronger action was necessary, and issued a successful DMCA notice resulting in the removal of all related imagery and marks.

If we did permit photographers to issue Creative Commons licensing for their Burning Man imagery, it would prohibit our ability to prevent both these types of exploitation. If a photographer decided to license a photo of the Man to Hummer for use in an advertisement, the only remedy available would be filing suit against the photographer for breach of contract – a much more expensive and loathsome proposition than the occasional Cease and Desist or DMCA notice — and more importantly, it would do nothing to remove the photo from the Hummer ad. I’m doubtful that participants would be keen on absorbing that kind of repeat legal expense annually in their ticket prices, nor on giving up the protections they’ve enjoyed in Black Rock City for over 10 years.

Of course, there’s another way we could get the necessary privacy and noncommercial protection — and some have suggested it over the years: we could prevent any taking of photographs at the event. Certainly you’ve seen similar prohibitions at concerts and other types of events. After all, Burning Man is a private event (with 40,000 of your closest friends). But we don’t want to do that — photography and filmmaking are forms of self-expression too, ones we value very much from our participants. But the EFF seems to think that anyone attending any event somehow has an absolute right to take photographs, and then to do whatever they want with those images without any effective restriction or manner of enforcement. While we believe that such rights do make sense for any of us taking pictures in purely public spaces, this is not true in the private space of Burning Man — if it were it would mean that Burning Man couldn’t protect participant privacy or prevent commercialization of imagery.

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.

We don’t remove images from pages just because they criticize us (I’ve never been involved in taking down an image from an editorial blog criticizing Burning Man, and it’s certainly not because there haven’t been any!). We’re also not at all interested preventing participants from sharing their personal imagery or impressions of the event on third party sharing sites in a noncommercial manner, so long as they observe the concerns about privacy and commercialism. We’re delighted to see people sharing videos, stories, and pictures on our official Facebook page, and we know that it, along with Flickr, YouTube, Vimeo, etc. are representative of the way many of us share personal imagery in the digital age.

Folksingers on Center Camp Stage, image by Susan Becker, 2008

Folksingers on Center Camp Stage, image by Susan Becker, 2008

Frankly, we’d rather gouge out our own eyes than get in the way of that kind of personal expression in our community. That’s why we’ve engaged with groups like the EFF and Creative Commons to continue exploring and evolving our policies to reflect the evolution of intellectual property itself. In fact, Burning Man’s lead attorney on intellectual property, Terry Gross, was the EFF’s first General Counsel — and he wrote the very licenses to which Ms. McSherry objects in the post, but she unfortunately fails to mention that their ongoing conversation behind the scenes has, even before her post, been helping us to frame the next step in evolving the licensing of image use at Burning Man.

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. This work continues and will heavily advise our image use/trademark enforcement processes in the coming years.

At the South By Southwest Interactive festival in March, I attended a panel called “How to Protect Your Brand Without Being Evil,” which was hosted by members of the EFF, the Creative Commons, and Lawyers for the Arts. After 45 minutes of enraptured listening, I stood in the audience to address them with this very issue – “But how can we evolve along with these issues in the digital age while still protecting our participants and artists in such a rare environment for self-expression?” While nobody in the room seemed to have the answers (nor did they take me up on my offer to buy them dinner and hammer it out, sadly — guys, if you’re reading, I’d love to hear from you!), we did seem to agree that Burning Man occupies a rare and unusual corner of the digital rights landscape, one without simple answers.

Elevation by Michael Christian, Auriah Milanes, Scottie Chapman and David Andres, image by Mario Valenti, 2008

Elevation by Michael Christian, Auriah Milanes, Scottie Chapman and David Andres, image by Mario Valenti, 2008

We hope the EFF — and you — will join us in a dialogue about how to attend to the desires of our participants for an atmosphere of free expression while accommodating for this evolution. For 2009, because we still think it’s the right thing to do, the licenses and ticket back agreement remain basically as they have been — in the interest of protecting your right to freely express yourself in Black Rock City. As much as I love and appreciate a lawyerly brain (ask anyone), I hope that forward-thinking legally minded folks like Ms. McSherry will step out from behind the legal lens of this narrow interpretation, and dialogue with us about how we might continue to evolve alongside this new digital culture while still remaining true to the foundation of respect for self-expression that has made Burning Man a cultural phenomenon for so many years.

The issue of personal rights of privacy, and the preservation of experience over the rights of commercializing that experience is a subject that affects more than just Burning Man participants. Your thoughts on the EFF post and our response are welcome! Or, if you have concerns, questions, a counterpoint, or indeed, violations to report, please drop us a note at ip here: ip (at) burningman.com.

(Note: all images are courtesy their photographers and the Burning Man Image Gallery -  visit to view each page containing the photographer’s website and contact information.)

(EDIT: The author regrets her failure to acknowledge Dan O’Day, Rosalie Barnes, Lightning Clearwater, and Marian Goodell for their significant contributions to this piece.)


573 Responses to ““Snatching Digital Rights” or Protecting Our Culture? Burning Man and the EFF”

  1. Halcyon Says:

    Wonderful response. Whenever I see photos of Mardi Gras, I find myself grateful for the Playa photo policy. So many personal expressions are undertaken within the (well-earned) trust of the event. But that trust is fragile and, sadly, needs protection outside of Black Rock City.

    P.s. Did my packaging for “Black Rock Boobie Bourbon” get approved? I need to fulfill these orders.

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  2. Michael Holden Says:

    As a long-time burner, photographer and EFF supporter, I thank you for your well-worded summation of the complex legal, technical and social issues that surround this topic. See ya on the playa!

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  3. Roxanne Graham Says:

    You rocked it out of the park! Excellent and thorough discussion. Thank you.

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  4. Jaya Says:

    Erudite reply, targeting the concerns about changing the policy while displaying evidence of how it has been enforced. This policy is one of the few walls that separates the playa from the default world, and a critical wall to defend. If it can one day be replaced by a better defense, then excellent, but it must be defended. Sending gratitude for manning the front lines for the thousands of us who call that desert “Home”.

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  5. Lady D Says:

    Brilliant response…

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  6. Lonny Eachus Says:

    I understand that you are trying to think outside the box, and honestly attempt to enforce this licensing issue for the good of your customers/participants.

    The issue is that there is a conflict between the INTENT of your agreement, and what your agreement actually says. The intent of the agreement may be “you are now safe in Sanctuary”, but the letter of the agreement says, in effect, “All Your Base Are Belong To Us.”

    Where the problem arises is: how do you intend to guarantee that, 10 years from now, some future group or committee does not decide to change the actual practice of how that agreement is used and enforced? This is why entities like EFF raise alarm. They have ample experience and historical records of laws and contracts that were written very broadly, and we can presume with good intent, but which were later abused because the language on the documents made it possible.

    And the result of that experience is the attitude that if it is never intended to be used that way, the letter of the law or contract should make it very clear that it CANNOT be used that way. It is interpreted in a “narrow sense” because it should be WRITTEN in a narrow sense, allowing only what it intends, and nothing else.

    What you have is not a “law”, but the same concerns apply. Whenever laws or contracts have been written over-broadly, and remained in effect over a long period of time, they HAVE eventually been abused. There are probably exceptions but if so I am not aware of them.

    I do not claim that is an easy task to narrow your licensing or agreement terms to something that would not allow abuse. But there must be some way to do it. And if you can manage it, I am sure that your customers/participants will be somewhat grateful today, and it is likely that they will have reason to be extremely grateful in the future.

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  7. Young Robert Says:

    To Qoute another Burner; Kevin Thomas – “The BM leadership is as thoughtful as the EFF leadership is rabid. Stay strong!”

    What esle is there to say? Nicely put!

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  8. J. Lasser Says:

    I just love the dissonance between the comments here and at BoingBoing’s response at http://www.boingboing.net/2009/08/14/burning-man-responds.html

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  9. Brian M. Wise Says:

    Frankly, I believe that the EFF’s challenge to Burning Man was far less about the issues surrounding information theory and control and more of a marketing issue regarding intellectual property and freedom.

    It was a clearly self-promoting post that hacked on an organization with no clear rationale to it and describing an issue without leaving any other side.

    I realize this is a clear legal tactic that’s common in legal practice, but for an organization that purports to protect electronic rights and freedoms, it’s a massive failure.

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  10. Hardware Barbie Says:

    Well said, well thought out and thank you for taking the time to respond in such a manner.

    I no longer ride in critical tits due to all the filming that goes on, which is sad as I so enjoyed getting together with my fellow boobie owners and riding.

    Its so sad that men or people in general feel the need to share their every moment with others. Rather than be in the ‘now’ of what they are experiencing and actually allowing themselves to experience something and partake in the joy of others, they are to busy filming or photographing thinking of what others are going to think of what they saw…

    Just last year I caught some guy filming me while I was showering at my camp. I stopped my most enjoyable shower (long day- DPW) and walked up to him and told him either erase the camera or I erase his head… I was really hoping for the second choice by then.

    The violation I felt in a community that I love and expect to finally be free in was subtracted from this man’s thinking.

    So keep up the great work, I hate to see an increase of ‘damage’ that can be inflicted by those of us that are getting really tired of those filming

    Just a note a new method I am really enjoying using on these folks is a can of spray paint to their camera…

    Much Burning Man Love
    HB

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  11. 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.

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  12. Sioen Says:

    Thoughtful, considerate, informed — pretty much what I’ve come to expect from the folks developing and enforcing these policies.

    Thanks for keeping Burning Man the special space it is.

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  13. Lia Says:

    I have to agree with Lonny Eachus on this one. While you are spouting the nice jargon now that Burning Man is being put in a negative light, I notice you haven’t changed the Terms and Conditions.

    How about putting your actions in motion?

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  14. Virginia Says:

    I just wanted to say that if it weren’t for an independent documentary film. I would never have known what Burning Man was. I now follow the event with interest and hope to attend before I leave this Earth. As a writer and internet participant, supporter of the arts and artists, I applaud your efforts to protect the entity and identity of The Burning Man event. It is unique in all the world, and wonderful artsiness of the whole concept and the participants should never be exploited for non-Burning Man related commercialism. Burning Man promotes itself and thank you who volunteer for protecting the participants and the art that is alive due to Burning Man.

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  15. westside Says:

    thanks for standing up for us. i think some people don’t get that heavily tattooed/pierced and otherwise “decorated” people are walking artwork! or that their malformed need to steal peoples images interferes with our open expression, and playful PURRticipation in life as well as burning man. it’s become a real drag for me to go into center camp to grab a cup of coffee, cuz i know as soon as i do i’m going to have to duck 20 *$$holes w. big fancy camera’s, half of which won’t even ask for permission (no purrs for that!) to take a pic. they act like just cuz they want to “grab” a shot of me that god almighty is on their side, like they have some kinda constitutional-devine right to take my picture. so i don’t hang in center camp much, and i’m getting really annoyed at balding old men on the playa try’na steal my image!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! so thanks for all the work that you all go thru to protect my right to b without hassle, copyright infringement, or disrespect to my purrson. and in this same way you protect all those “professional (no purrz!) photographers from getting my foot stuck in thier intestines!

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  16. Sioen Says:

    Cross-post from BoingBoing of my more complete thoughts:

    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 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.

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  17. James Says:

    Sorry EFF has the legal precedent and the qoute “Commercialist wolves” is laughable. The case isn’t one of not lwanting anyone to make money at burning man, but a case of not wanting anyone else but Burning man to make money at burning man. I dare you to say in the same breath that you are protecting us from the commercialist and tell me the ticket price. It’s not a secret that some burners take a salary all year long, sounds like a job, sounds like a buisness to me. I chose to come to burning man to be free and anyone who happens to take a picture is a witness to that freedom we are not all the cowards you think we are. So, thanks for the “protection” but you should have some damn pride in what we do out there. It the same thing as going to disneyland and not being able to take a picture. You may find the analogy ofencensive but Burningman is my Disneyland. I have while there witnessed a couple who were married and I saw them harassed by a group of burners for trying to keep a momento of thier day. Try to look at this objectivly and not make it a us against them thing like your trying to do. it only sways the most naive of us. Thanks

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  18. NOLA Slag Says:

    My support is for BRC.
    I have been attending since 1996 and have always taken photos for personal use – never commercial.
    The efforts of the enlightened people who protect the BM community are legendary and just.
    Thanks BRC ….
    See you in a few weeks !

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  19. John Gilmore (EFF founder) Says:

    Hi Andie! It’s great that Burning Man folks come to EFF events occasionally too. I’m glad that we can all stay friends and have fun while working this stuff out. We tried letting your lawyer and ours work this stuff out in the background, and learned a little about each others’ concerns. But I learned more from your posting today (and the public commentary on various sites) than I knew before. Maybe a public airing will be a better tonic than those private conversations. Both the EFF and BM communities know more in the aggregate than either of our staffs knows alone. All I know is, when I want my rights protected, I don’t run to the Burning Man Org; and when I want the best party of my life, I don’t run to the EFF. See you on the playa!

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  20. Jomama Says:

    How does Black Rock LLC know which photos infringe on participants privacy and which don’t? How do they justify taking 10% of the profits from the sale of photographs of participants without their permission? They’re only against commercial use that they don’t share in the profits of. COMMERCIAL USE OF PHOTOS AT BURNING MAN HAPPENS ALL THE TIME.

    They keep harping on the “for your protection” and “commercial use” subjects, when their contract doesn’t even allow NON-COMMERCIAL exhibition of images. “personal use” as per their contract means not showing the photos to anyone ever. Strange they didn’t mention that.

    Its about BRANDING. Burning man doesn’t give a shit about you. They only care about how the event is portrayed in the public eye to protect their brand.

    Commercial use is already prohibited without these policies. Commercial use would require a model release and a property release. Black Rock LLC in fact regularly violates these requirements. Please post signed model releases for the photos on this page Andie.

    Photographers understand the rights and liabilities in making images. Most readers of this blog do not. That’s how the LLC can get away with spinning all of you like this and get away with it. You may be buying this BS, but I am not.

    Why am I anonymous? Contrary to what is stated in this blog, you WILL get blacklisted from the event for making such statements.

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  21. A burner & EFF financial supporter Says:

    Dear Mr. Gilmore,

    Thanks for taking time to provide your input. Regarding this comment:

    

”All I know is, when I want my rights protected, I don’t run to the Burning Man Org; and when I want the best party of my life, I don’t run to the EFF. See you on the playa!”



    I apparently missed the memo that says EFF has the sole franchise on protecting peoples’ privacy. When the EFF helps someone out when a naked picture shows up on WildNudesAPoppin, please issue a press release so we’ll all know.

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  22. Andie Grace Says:

    JoMama (blacklisted? You *vastly* overestimate my superpowers, alas…)

    The professional photographers who shared the posts images with our archives made a legal agreement binding them to obtain and file model releases on those subjects. If I showed you the kinds of images I have seen abused over the years, you’d see quite clearly how we can tell which images are a violation of privacy. The vast majority of images are not violations; some are, though, and I still don’t hear a solution in your post, and your assessment that “‘personal use’ as per their contract means not showing the photos to anyone ever,” is entirely incorrect. If you’d read the post you’d know that.

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  23. Trevor Says:

    I’ve never been to burning man, it looks like a hoot and I’d love to one day attend.

    I’m a professional photographer in Canada. I don’t do commercials and would certainly never help to sell anything for some of the companies named above. Obviously, someone should grant permission for their image to be used in a for profit ad campaign, and I am including the photographer in this, as well as the subject.

    I don’t however, feel that enough of a divide was illustrated in this piece to distinguish the difference between editorial type work (media/photojournalism) and commercial work (not media). I can assure you, the media photographer is doing it out of love and not to get rich. The road to riches as a freelance photojournalist can be extremely long when your only making $10 – 15 000 a year. Without media presence, I can also assure you you would not be able to boast 40 000 of your closest friends. It would be the same handful of people who began it years ago, which is fine, but 40 000 was pointed out and it seemed to be in a positive spin. 40 000 I promise, is not a figure arrived at by mere word of mouth from attendees.

    Another concern I have, as a photojournalist, is that there was no mention of who owns Black Rock City. I’m not from the area, and as I’ve mentioned have never attended so please forgive my ignorance. But ownership of the property the event takes part on plays a huge roll in the legal side of this issue. Burning Man was compared to concerts. Concerts happen in both private and public spaces. Big concerts that happen in public spaces like parks are operating with permits and have often rented the space for the day or weekend. Once rented you can add your own security and rules, search people for alcohol or cameras or whatever else you don’t want to see at the show.

    I was under the impression that burning man just happened at the same place in the middle of the dessert (public space) and organized by the same people each year outside of the realm of a permitted event. If this is wrong, I retract this, but if it is in fact the case, than any person with a camera can go into that space and photograph anything they see, and then publish it in a newspaper or magazine or blog or hang it in a gallery. Again this excludes commercial use, and a newspaper editor may end up in hot water for publishing controversial images. But if I am standing in the middle of a street or park or other public space that has not otherwise been rented, I can legally photograph anything I can point my camera at, and this includes inside homes or yards that are not otherwise shielding a line of sight with curtains or a fence. This law is similar, but with different wording in both Canada and the US.

    Please don’t mistake Media for those on a commercial endeavor. We’re just at these events to show those who couldn’t make it what they missed, and possibly what they might see if they one day decide to go. If you don’t want to be photographed doing something in public – don’t do it. And remember, most of you reading this, especially if you are in the urban US, have been photographed well over a thousand times in the last 24 hours, possibly even with your finger in your nose at a red light. Let’s worry about that sort of personal invasion before you start getting worked up about a fellow artist who chose to paint with light instead of body paint.

    Cheers!

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  24. Danny Says:

    I think one of the issues here is of intent; I’m pretty sure that EFF (though here I speak for myself, not them) doesn’t doubt the good intentions of BMO. But the problem remains that in order to solve the challenges you face, you’re using a tool that is itself damaging to free speech — the DMCA takedown provisions. You’ve chosen the language you have, in gathering IP rights to your organization under these conditions, specifically because they allow you to bypass a cumbersome court process when fighting issues of privacy.

    There are two problems with that 1) by doing so, you’ve taken advantage of a procedure that goes against the free speech tradition that you *can’t* use the law to demand the removal of somebody else’s speech without seeing a judge about it, and 2) in order to bend this (overbroad) intellectual property law to serve the purposes of privacy, you’ve ended up taking over a bunch of other rights from Burners.

    My own feeling is that EFF, as an advocacy organization, is right to point out that use of the DMCA takedown to bypass judicial review is wrong. I understand that BMO has a complex and weighty task to fight, but deciding to use a bad law to cut out the middle-man, when the middle-man is a judge, is not something I would like BMO to do, and not something that the EFF could support an organization doing, whether its Burning Man or doctors attempting to chill criticism of their work by using the same DMCA takedown process.

    I also think that, despite your obvious good intentions, EFF (as an organization supported by many Burners) is honor-bound to point out the second point; that their rights to their own photographs is absolutely contingent on your good intent for a very long time. I believe you’re good people; but it seems unlikely that you’ll be the person in charge in 70 years time, when that copyright in those photographs can still be taken up by whatever the Burning Man organization is like in 2079, or any time between then and now.

    I think that you and EFF are likely to continue to have differences on my first point, and I think that’s fine. On the second point, perhaps it makes sense to try and build into your terms and conditions more explicit conditions on your own (ie BMOs) actions? A truly equal contract between BMO and the people that make up what it seeks to protect would be one that placed conditions on BMO as much as those who buy the tickets. That sort of constitutional agreement would feel to me more in the traditions of Burning Man being a society to itself, rather than a central organization selling tickets whose T&Cs you can accept and decline. I’m sure you would be happy to have your good intentions reflected in the T&Cs, ticket-buyers would be happy to see you make a legal commitment to those intentions, and EFF would have one less group to worry about misusing IP law.

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  25. Huey Newtron Says:

    @Halcyon “Whenever I see photos of Mardi Gras, I find myself grateful for the Playa photo policy.” Really? You’d forbid photographing a parade down a public thoroughfare? One recalls soldiers putting out the eyes of those who dared to glimpse Lady Godiva.

    Perhaps you’ll be shooting at the “commercialist wolves” from a helicopter. Sorry, from a human powered ultralight.

    @westside Interesting response. I’m not quite sure if your comments are more ageist, anti artist or anti first amendment. They’re a disquieting combination of all three, topped off with a threat of physical violence.

    The image emerging of the participants in the event which takes place Black Rock Playa (no, I will not use your name, so as not to damage your precious trademark) is one of assumed privilege and entitlement, of the worst kind of holier than thou attitude, fueled by upper middle class hubris and wads of cash.

    This is a misuse of public land.

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  26. guywire Says:

    I think it is great that the Burning Man organization is protecting the privacy of participants and enabling free expression but the majority of this post and defense is misleading. Pyrokinetic is correct in saying that the commercial defense is irrelevant. Photographers and videographers can’t shoot people or art cars to be put in a commercial without releases. The burning man terms are completely unnecessary to prevent burning man imagery in commercials.

    The other thing I find interesting is that the terms prevent personal use of images on photo sharing sites, and yet that apparently is not the intent nor the way the agreement will be used. It seems the terms should be rewritten, and you should rethink your argument since saying you are defending against people being shown in car commercials is ridiculous.

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  27. Peter S Says:

    I love you, BM org !

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  28. MG NOS Says:

    Ok, it was a bit complicated to wade through but ‘a difficult topic’..OF COURSE NO ONE WANTS TO SEE A HUMMER BURNING MAN AD!…This is what happened to me…I’ve been a amateur filmmaker for years…hell, I was studying film at uc santa cruz the first time I went in 1999, but only too a few 35mm disposable camera shots for myself and my dorm room. In 2007 I did the whole official thing where I signed up for a camera permit and signed the ‘camera use contract’..I just ‘had’ to make a burning man doc for myself, and I asked permission (explaining all that) from every person for which I wanted to do something’ risque’

    ..One of the things I filmed was ‘The Steam Punk Treehouse’ (farmhandfilms on youtube), I got good responses from that particular cut. About a year and a half later I got a message from Discovery Channel asking me if I had the original footage of the steampunk treehouse thing I taped and edited…I’ve actually worked for Discovery before as a production assistant and innitially sort of confused the whole thing, thinking ‘damn if Discovery is asking for this, it MUST be ‘ok’…but ‘no’. Not only did I not have the raw files, I realized ‘the non commercial use’ thing I signed just to use a camera period. I explained that to the Discovery channel chick and she said’ oh, I did not know that!’..I wonder how much of that is true, but all in all, I was tempted at first then realized I was trying to be suckered by the Discovery Channel, all the blame would have fell on my person and I resent the Discovery Channel for even asking and not knowing better in the first place..

    But besides from that…I HAVE seen the odd Burning Man documentary on cable and wonder how much of that was ‘ok’ with bmorg..I agree, I don’t want to see burning man get played out by advertisers trying to have a ‘radical edge’ with what they percieve to be their ‘new alternative customer base’…that’s lame…I hope ‘Isuzu’ learns and knows better than to try to take advantage of ‘lay burners’ like myself who just wanted to share something personal with their friends. -mg nos

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  29. art predator Says:

    It’s a complicated issue (and dare I say an evolving one?) and I appreciate the time and energy everyone is putting into figuring it out.

    Lots of fear on both sides. I too agree that a lot of the fun has been taken out of Critical Tits. Last time I rode in 2007 the men pressing in with cameras made for a dangerous situation and many of the women I talked to were uncomfortable with it.

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  30. Robotech_Master Says:

    “I hope that forward-thinking legally minded folks like Ms. McSherry will [...] dialogue with us [...]”

    FYI, “dialogue” is not a verb.

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  31. Drunken Economist Says:

    Ah, BM, EFF and BB: The id, ego, and superego of the Boomer movement. Based on the prattlings of that Gillmore geezer of the EFF, all just the same guy having a bad trip.

    Only BM ‘Incorporated, LLC’ would try to copyright a private wank on public property’. The photog’s right, you guys are a bunch of wankers. ‘Cultural heritage’, hah!

    Only the EFF would waste time on fussing about a copyright enforcement of a private wank on public property. Now you know why I don’t believe or give to you self appointed ‘protecting my privacy’ tossers.

    Finally we have BB, the same buncha tossers who would not only fling useless, out of context — what context? Bits’n’Bytes around, and if you don’t like what they think they have to say, then one Teresa Wanks Tossen will ‘disemvowel’ ‘em.

    Look at you now. ‘The man’. Go ahead and copyright your tossings. The less who know about your ‘generation’ the better off the country will be.

    The next time you do this wank, can we wall you all off and pitch some guns over the side of the wall? Then you can self correct all this Darwin style.

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  32. PAul Says:

    hogwash. Burning man has no business involving themselves in licensing the works of others no matter what their lofty goals or who they aim to protect.

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  33. Disgruntled Says:

    None of this explains why you directed cafepress.com to take down the store we had set up to order shirts for our theme camp campmates and to give away as gifts at Burning Man. One would think there would be some common sense applied to the enforcement of these rules where participants who are doing nothing to profit commercially from Burning Man, would not be prosecuted.

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  34. Andie Grace Says:

    Robotech_Master: mea culpa. I verb nouns all the time, I know it’s a lazy habit. See? I just did it again!

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  35. Will Chase Says:

    Robotech_Master: actually, “dialog” IS a verb, as well as a noun:

    http://dictionary.reference.com/browse/dialog

    -will
    (taking my grammar fetish and going away now)

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  36. Foo Bar Says:

    You just sound like another well-intentioned ass who imagines irresponsible and egregious powers for themselves but swears he will never abuse them.

    You talk about the ways you carefully use your imaginary powers only for good (“we’ve never silenced a critic”). This is sickening. So, I guess you implicitly agree that you _could_ do it, you just choose not to. And you probably also agree such imaginary powers would have staggering capacity for abuse – and that others will abuse them. This, by the way, is why they are imaginary (trust me, if you got to the Supremes, you would be forced to agree) and better stay that way.

    If you have a trademark and someone is abusing it, that’s settled law. Boring. So there goes your “commercialization” angle.

    For the rest, you seem to want to create something new and unique that can’t actually exist without a vile, egotistical and hypocritical trampling on human and civil rights. If rules against cameras, or on how photos must be taken and used, sound like Soviet/Chinese style totalitarianism, this is a clue.

    If I want to do something outrageous or provocative, and I want to do it in public, I cannot even fathom having the audacity to prevent people from looking at me, remembering me, talking about me, or yes Virginia, photographing me, and even showing the photographs to others (gasp), no matter what my venue (even the mystical realm outside of common sense that burning man seems to wish to create). So there goes your “privacy” angle.

    Yes it might be wonderful to create a safe space for people to be crazy in large groups without having to have their employers or friends or parents see the pictures later. However, this is not possible, without limiting free expression, which is, in a word, evil.

    Once again, the EFF shows its principles by not compromising even for a counter-culture event that I’m sure many members attend.

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  37. Brian O'Reilly Says:

    You eloquently make the case for your claim of unusually broad rights away from the participants at Black Rock City, but seem to miss entirely the point of the EFF’s criticism; namely, that you presuppose that the BMan org will continue to Do No Evil[tm](c) for the rest of time — a bet not many students of history would be willing to make about any human organisation, ever. It should be noted that the first signal of evil intent is usually a claim of some unusual right to compel third parties made under the auspices of Protection[tm](c) of their rights. :) It’s gratifying to know that you are working so assiduously in our own best interests — what guarantee do we have that will always be the case, and what mechanism have you established for us to take these incredibly broad rights away from You (the royal You, no personal inflection intended) when Evil Returns[tm](c)?

    Kind Regards,
    Brian O’Reilly

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  38. Geoffrey A. Landis Says:

    Hmmm.
    Quick summary is that Burning Man has made a stunning rights grab, and their response is to say, we’re only going to use our powers for good, not evil.
    Very likely true. I believe you.
    Nevertheless, their policy essentially boils down to, “all your base are belong to us.”

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  39. Sarah Says:

    If this was omn private land, I’d say you have the right to enforce whatever rights-restricting rules you want. On public land, even at a private event, I say no. I side with the EFF.

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  40. JimB Says:

    In order to “safeguard” freedom, you take it away? It sounds like so much political lawyer speak and not part of the natural reality that BO says it wants to help foster. Its a sledge hammed used on a fly sitting on a table, in an effort to “safeguard” the table. I don’t think those in charge really see the harm they are doing and the people who will now not come.
    I bet the BO will be happy, all the way to the bank as they tally up the receipts for all the ticket sales. Ya right, they are protecting people privacy, bullshit, they are protecting the almighty dollar that they want to continue to flow into their hands.
    Beware, others have lost more for doing a lot less. Do the right thing and limit what is on the back of the ticket before you find that it doesn’t matter because those that you think you are safeguarding have fled in fear.

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  41. Halcyon Says:

    @Huey Newtron – Did I need to be more clear? I mean the photos of naked breasts at Mardi Gras. Presumably, a woman is having a BLAST, intoxicated and with the encouragement of the crowd around her, she shows some skin. Maybe it is the first time she has done so. Good for her! What a glorious moment in her personal develpment towards freedom from shame!
    Alas, her photo is captured and now posted on a website (and RSS feed & blog network & …) with the caption, “DRUNK SLUT TIT ACTION….”
    The point of Burning Man (to me) is to create an environment so fertile and supportive that people blossom in ways they never knew they could. The event (and community) creates many rules to try to foster this environment – the photo rules being some.
    As participants, we all agree to these rules.
    Not only that, we are invited to attend meetings and voice concerns year-round.
    And if we feel the organizers are no longer to be trusted with this incredible power of images, we can simply not attend.
    I have shared MANY photos and MANY videos online. I have asked for (and received) permission to create commercial works with footage I captured at Burning Man. I have seen my likeness in commercial works, as well. I have never had issues. The organizers have earned my trust.
    -halcyon

    my Burning Man media: http://Lustmonkey.com

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  42. Andy Pischalnikoff Says:

    As another photographer who attends the burn and takes photos with permission, I agree to the conditions that BM HQ require. It is a special event and part of it’s charm is it’s lack of commercialism.

    I make sure I get releases whenever possible and ask permission before taking photos. Also people expect it and respect requests.

    I am honored each year when I get permission to create a show of my photography and I do my best to treat others with respect and proper professionalism.

    I hope Burning Man continues for many more decades,

    Andy Pischalnikoff

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  43. oh boy Says:

    The land is owned by the federal government and is patrolled by government rangers (law enforcement) during the event.

    Every person, place or thing at this event while on federally owned land can in fact be photographed without consent.

    For those photographers (professional and amateur) who do not agree with this rights grab I encourage you to voice your concern with your Senator and Congressman and ask them to have the Department of Interior stop the use of public land for this event.

    For an event that promotes free expression you sure are attempting to prevent the art and expression of photography.

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  44. oh boy Says:

    Here is the link to the DOI permit for the Burning Man event. Page 24 of the document specifically states that this event is conducted on public lands.

    A permit does not constitute the authority of a private business to trample/over-step the rights afforded to the people granted by law while on private land.

    http://www.nv.blm.gov/Winnemucca/NEPA/burningman/3_Burning_Man_EA.pdf

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  45. Pamela Says:

    Okay.

    Burning Man (LLC, TM) wants to ‘protect’ the rights to any images of me and my artwork, so that I (x 40,000) will continue to return each year and create an event for them to charge $x00 a head in which to ‘participate’.

    Does nobody realize that without me (x 40,000), any ‘tourist’ (and/or pornographer) who came to the event would receive precisely one plot of dust and a porta-potty for their ticket price?

    Artists, performers, freaks, and fry-heads…PLEASE look with a critical eye here, even for a moment.

    They (TM) are *making money*, left and right, off of us. Burning Man (TM) is a *commercial enterprise*. Does nobody see this? Yes, the BMORG does a lot of good deeds, and donates money to schools, etc etc…but so does Coca-Cola (TM) and Target (TM) and Wal-Mart (TM).

    Have you ever looked through the image gallery on the Burning Man (LLC, TM) site? What better advertisement for this event could possibly exist? Nobody has ever made any attempt to contact me in regards to images of me and/or my artwork that the Burning Man (LLC, TM) team may or may not be using in their mailers, advertisements, website, or other ‘commercial’ purposes that this CORPORATION can dream up. Has anyone else received such a request for permission? How on Earth would the media team (volunteer or not) know if a photog ever received MY permission to take any photos whatsoever in the first place? I have only ever given explicit permission on three separate occasions for strangers to take my photograph, in all the years I have been Burning (TM), and have actively stopped countless picture-snappers who did not ask in advance.

    If I (x 40,000) did not arrive each year to make art and make merry, what sort of money would Burning Man (LLC, TM) make from their ice sales, and their coffee sales, and their t-shirt and poster and calendar sales?

    I second the earlier request for proof of model release for the pictures used in this eloquent but misguided response to the EFF.

    You at the BMORG (LLC, TM), who have clearly drank the Kool-aid (TM), are now helping the serpent to eat its own tail. Can you protect us from yourselves? Can we at least get a kick-back when you use images and artwork which are NOT generated by the BMORG members, to promote your event?

    This situation, and the glossy-glossy speech surrounding it, hints at a much deeper illness within the Burner (TM?) community…

    Of the Big Ten, my favorite has always been radical self reliance. Before my first Burn (TM), I studied every single word of every single page I could find on this event. I built a dome, made some amazing artwork and costumes, gathered my survival gear, took the Big Ten to heart, and drove into the desert, not knowing another single living soul who would be in attendance. I conducted myself (as I continue to) with utmost respect for all of the Big Ten.

    If everyone who attended Burning Man (LLC, TM) actually read, respected, and self-enforced each of these principles, there would be no need for regulations. Period. However, the ‘community’ (TM) has become dilute with people (artist and tourist alike) who have little to zero regard for any such principles…so the need arises for external ‘enforcement’. Poor Mr. Harvey (TM) must lay awake nights just thinking of the dizzying variety of lawsuits that Burning Man (LLC, TM) could incur. I feel for him/them/you, truly.

    This very real fear, brought about by the explosive growth and simultaneous dilution of the event, which in turn was brought about by Burning Man (LLC, TM) advertising itself (radical inclusion does mean everyone….tourist ticket money is just as green as artist ticket money afterall) by using documentation (photos, videos, stories) of my (x 40,000) ‘participation’, has brought us such issues as:

    * Lengthy Disclaimers on Tickets (or, come to think of it, tickets at all….)

    * the need for someone to ‘curate’ the art (um…immediacy and direct experience, anyone?)

    * Registration and pre-approved placement of theme camps and art installations (and the destruction thereof)

    * the Dust Plume Citations (maybe they ought to just issue a Common Sense test before issuing a Gate-Entry Ticket, for those who don’t get the ‘we all have to live in this petrified fish shit for a week, how about not kicking more into the atmosphere’ thing)

    * Food Worker / Health Cards if you want to gift comestibles (my chances of injury or death from any number of other things at Burning Man (LLC, TM) is faaaar greater than getting food-borne illness from a non-’lemon’ snowcone)

    * The Image-Use Debacle (a car ad? really? that’s the *most likely* scenario? As though Lexus (TM) or Hummer (TM) doesn’t have enough money to just hire models and fire dancers and jugglers and steelworkers to make their own freak-o-mercial if they so chose?)

    The list of these constraints continues to grow each year, as does the list of excuses for their necessity. And whenever I (x 40,000) attempt to have an actual solution-oriented debate or offer suggestions for change, it seems the response is usually one or more of these patented BMORG lines:

    * It’s for your own good (thanks but no thanks, BM)

    * Burning Man (TM) is not a democracy (no kidding)

    * If you don’t like it (whatever ‘it’ happens to be at the time), feel free to start your own event

    In lieu of starting my own event, I have discovered another option. After careful consideration over the past several years, for reasons detailed above and for many more, I have decided that Evolution (TM) will be my last Burn (TM).

    I will take the lessons I learned through my years of participation with me, and will always be grateful for them.

    I will also take my artwork, my performances, and my participation back to the default world, where Burning Man (LLC, TM) can no longer regulate nor profit from them.

    Someday perhaps the other (X39,999) participants will do the same…then the BMORG can blissfully divest themselves of the horrible burden (I never asked) of ‘protecting’ the hoardes of artists who make the admission price worth every penny, and hold reign over a public plot of dust and a porta-potty or three. All will not be lost…they can bill it to the tourists as the theme of “Minima”.

    A twist on Orwell comes to mind, concerning the ‘evolution’ of the Burn from the Cacophony days until now:

    “All corporations are equal…but some corporations are more equal than others.”

    and also a quote from my bad-ass grandma:

    “The road to Hell is paved with good intentions.”

    Best of luck to the EFF and the BMORG in hammering this out on behalf of the other (x 39,999) participants. You won’t have to worry about pics of my ugly mug any longer. ;)

    – Pamela

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  46. allaboutthemeow Says:

    Dear Disgruntled:

    We are fairly careful about pulling down cafepress.com sites. We tend to start with correspondence, and when we better understand the use and issue we go from there. I don’t know of the site of which you speak, but i’d bet it’s not as clear cut as the Project simply having your site pulled down. It’s likely related to your use of the logo, whether it was communicated to be just for your theme camp mates and whether you were therefore managing to control the sales to those in your camp only. An email to press@ asking for more information would give you perspective.

    We’re all about making gifts, and some of that happens on commercial web sites. It’s what and how you engage with it that matters.

    Meow

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  47. Andie Grace Says:

    Pamela,

    Actually, I kinda thought Voyeur Video was the most extreme example in my post. The others are worst-case-scenarios to illustrate a point, but there are countless examples that are less pithy and more realistic, and without the ability to turn some of them away over the years, I daresay you might have given up on “what Burning Man has become” years ago. I think it’s helped it to remain vibrant and immediate for a long time.

    I’m not saying I don’t think copyright law is a hamfisted way to try to keep something precious, nor am I saying some things don’t need to evolve. But don’t add this to the list of “new” restrictions – it’s been our policy for many years. From my own perspective as someone who’s grown up on the internet, I have to say the main reason I was eager to post this was to take a deeper look at it than we ever have.

    Thanks for posting your thoughts. For both you and us, here’s to…whatever comes next.

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  48. Andie Grace Says:

    To everyone: we are generally very strict about enforcing our Comment Policy (http://burnblog.burningman.com/?page_id=1615). However, this is a particularly highly charged issue, and in the interest of being as open as possible to all sides of this discussion, we’re choosing to err on the side of leeway in this post.

    Please don’t take advantage of that. This is a conversation that we can’t benefit from unless it’s kept civil, and we’re under no obligation to anyone to provide you a space to insult others.

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  49. Peter Says:

    It would be trivial for Burning Man to make the following blanket grant:

    If the photographer of a photo, the participants in a photo, as well as the owners of all artwork in the photo agree, Burning Man agrees to grant them the right to use, distribute, modify, and sublicense the photo in any way they see fit.

    In other words, I take a photo of my brother at Burning Man. Burning Man owns the rights to the photo. But if I ask my brother, and he agrees, we can both place that photo in the public domain, and use it as we see fit (including porn, advertising, or whatever else).

    This would eliminate all of the issues Burning Man came up with. This would also eliminate all of the issues the EFF came up with.

    Burning Man’s argument about limited enforcement bears little weight. The fact the Burning Man has not yet enforced its legal rights does not mean it won’t enforce them in 5 years when policies change, or in 20 when it is bought by TicketMaster. It has a chilling effect. A lot of people won’t engage in illegal projects (especially expensive ones) if they have the risk of being shut down on somebody else’s whim.

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  50. Drunken Economist Says:

    @Andie Grace: I’m sure everyone appreciates what you are doing in allowing even the more outlandish vents, like mine to stand. You *might* want to promote that comment to the start of the thread so that everyone understands. The Disemvowelers might wanna take notes as well. Just sayin.

    Now to the beef, now that I have less vino in my gut and Mighty Boosh in my brain:

    * “Unintended Consequences”. That’s why the EFF butted in. But, in butting in, and putting attention on this issue, they may set legal precedent either way it just makes life harder for your kids. Why the hell did dad and mom bring this crap up? We had laws on the books, and the courts of Nevada, and life is the USA is litigious enough…

    * “Conflict of Interest” slash what I call ‘critical ass’ or Drunkio’s Law of too many agendas turning something into a can of worms. Would the EFF have butted in if their bigwigs weren’t going to a burn? Other events try to do this all the time with limited success and DON’T have disclaimers…. which brings me to…

    * Enforcement. Money talks and bullshit walks. You, like $AAPL, and other Boomer enterprises can make all the rules you want. You’re making a structure that WILL inevitably be tested, and again your kids suffer the consequences. Example. DRM, and the resultant Bushy DMCA. Setting the future back by 10 years at least.

    * Circumvention: This discussion has brought out the 80% of us photog and legal and even lay folks who have informed you that there are holes and circumventions to what you’re trying to do.. Sure it’s an ‘event’ but as ‘oh boy’ and others say, it’s on public land. In geek UNIX terms, you’re trying to ‘jai’l the event, and a number of folks have shown you how easy a ‘jailbreak’ is.

    And however that enforcement comes out when it’s tested– it will inevitably strain your credibility. That’s why AAPL’s appstore comes under fire, BB gets called on their ‘disemvoweling’ and why this discussion is so heated.

    * What you guys [and BB, and APPL and other systems] need to understand is that you’re hearing criticism from the people who care about this. The weasels, shysters and pornographers will just continue to go about their “business” as usual.

    Sorry for being so long-winded…

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  51. Mackerel Says:

    I have a question. One of the images above is on the front cover of the latest issue of a paper magazine. You can see the cover here:

    http://www.commongroundmag.com/

    Is this an allowed use?

    They credit the photographer and mention his website, http://www.burnmonkey.com/

    Is his website (open to the public) an allowed use?

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  52. Doublejack Says:

    BMORG has my complete support in this.

    I’ve been attending and participating since ’93, and I’m sick of those impugning the BMORG as money-grubbers and getting all hand-wavey about what might happen in some potential future where the BMORG suddenly starts abusing these rights. I have my own frustrations with decisions the BMORG has made over the years, but I think they’ve handled the photography issue very well, and I thank them for it.

    The T&C exist as they do now because they’ve responded to real challenges and this is what has been found to work best.

    If as a photographer you don’t like it, start your own festival. Or better yet, thank Burning Man for letting us take pictures at all, and for doing such an incredible job responding to a multitude of nearly intractable challenges like this one and continuing to find solutions that work.

    Then go out there and take all the photographs you want and stop worrying about what *might* happen if ooh scary hypothetical booga booga.

    Report comment

  53. SkeletonMan Says:

    Thank you for thorough, constructive and enlightning reply!

    I would need much more time before I am able to come up with better suggestions.

    Report comment

  54. Pamela Says:

    @ Andie,

    First, I am well aware that the image rights policy is not ‘new’, and did not say anything about it being such. I make a habit to read the T&C every year, both the truncated version on the back of the ticket and the full version online. I did say that I have taken several years to carefully consider whether the growing list of regulations and legal infringements are something I am willing to continue tolerating. At this point, they are not.

    I have not seen my central point addressed, which is the following question:

    Can BMORG protect us (the artists/participants) from itself?

    Here’s a more succinct breakdown of what I mean.

    * Regarding pornographers, the ‘image’ of Burning Man (TM), etc: a brief perusal of the official BM, LLC image gallery will show countless images of partially or fully nude men and women, some in groups, some from behind, some from a distance. Has BM, LLC contacted each of these individuals and asked them if it’s okay to show their naked bodies on the site for time eternal?

    Your Terms and Conditions say you don’t have to.

    You use the image gallery, as well as other sections of this site, to promote ticket sales to the event, thereby commodifying these people’s naked experience, and offering the implicit promise that a ticket to Burning Man (TM) will buy you entry into the land where these things (and many others, like art cars and Thunderdomes) are commonplace.

    How is this different than pornographers or voyeurs using pictures (for profit or not) without the permission of the people in them? I recall years ago seeing a photo in the official image gallery of two women holding a “Free Blow Jobs for the Needy” sign. What better advertisement, to a certain section of populace, could there possibly be for this event?

    * I agree with you that the car commercial analogy is extreme, and that there are other examples that are more realistic. Here is a very realistic example, involving a car:

    I invest time, money, blood, sweat, and tears into building an art car. It’s awesome. I take it to Burning Man (TM), and drive the ever-loving crap out of it. It garners lots of attention, and everyone loves it. They take lots of pictures and video of my awesome art car. I do the same.

    A few months later, I decide to sell the art car, on Craigslist or eBay or my personal website.

    According to the Terms and Conditions, not only can I NOT mention in my advertisement that it was an art car for Burning Man (TM), I also can NOT use *my own photos and video* of the vehicle, if I took them while within the perimeter of Black Rock City (TM) during the event.

    If I am caught attempting to do so, I will receive one of your ‘friendly’ reminders that this is not okay, and have to take down the ad. If I do not, then there will be legal repercussions. I cannot even sue Burning Man (LLC, TM) for the rights to my footage/photos, it says clearly in the T&C that I cannot sue Burning Man for any reason, neither can my next of kin if I were to kick the bucket inside the trash fence. My hands are completely tied.

    However, Burning Man (LLC, TM) clearly owns all rights to that footage and those photos, and is absolutely free to post them in flyers and mailings, put them in the image gallery, or grant rights to someone else to place the footage in a documentary film and profit from it.

    How is this right or fair? How does this protect me/us at all?

    These are things to seriously consider in the ongoing debate. I believe that Burning Man (TM) with all its brain power, can absolutely come up with a solution that is better suited to benefit both the LLC and the participants who provide nearly 100% of the content of their event, and I wish you all the best of luck in doing so.

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  55. Dan Tobias Says:

    If you’re against the “creep of commercialism”, how come your site is in a .com domain (implying a commercial entity) instead of .org?

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  56. Andie Grace Says:

    Pamela,

    I do hear what you’re saying, but if the difference between images being used to promote the Burning Man experience itself vs the trademark being used to sell a car (even an art car) isn’t evident, let me point it out. If there was a lot of profit to be made in running Burning Man, I’d see your point about us “selling” the experience with the image gallery, but if you look at the numbers, the “profiting on others” comment just doesn’t bear out – we exist not to turn a profit, but to keep the culture going, and one can consider the photographers’ submissions to the gallery a part of contributing to that.

    Photographers are the ones responsible for collecting their releases, and they sign legally binding agreements that say that they have. Phil Steele, the photographer who shot the Common Ground cover image, has releases on file; he’s a registered photographer who has shot at the event for years.

    There is only one sure way to know if a nude person has given his or her consent to a photo, and that’s to ask for a release. When we can’t confirm the existence of one, we don’t approve the image use. I don’t have a staff of people to manage a photo licensing office, but we do the best we can — and the policies in place permit us to respond as fast as we can when someone’s image shows up somewhere they *didn’t* intend it to.

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  57. nancy robinson Says:

    You don’t have my permission to photograph me. Ever. (Unless you ask nicely and I have final approval). Just because I am in public space does not mean I lose my right to privacy. And if it does, then Hello, Burka…

    Why is that so hard to understand?

    (Yes, I “get” photography. I follow photo history, was wed to a photographer, and collect images. But I also “get” privacy. And until you open up a text book and see an image of your cooter giving birth…)

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  58. Pamela Says:

    Hello again Andie,

    This is just dipping down into age-old arguments, and all of these questions are not directed at you to answer, but are in fact simply points to consider:

    I do look at the numbers. Burning Man does make a profit. If BM, LLC doesn’t exist to make a profit, but only to protect our culture, why not file a 501(c)3 and settle that issue once and for all? There are lots and lots of nonprofit organizations that quite effectively protect lots and lots of cultures and subcultures and people and rights, and manage to pay healthy salaries to their employees, without needing to be registered as a for-profit LLC.

    Another age-old issue is the head-in-the-sand stance that BM, LLC appears to take regarding money. And no, the difference still isn’t evident, nor as clear-cut as some may believe.

    Just as the BMORG uses ticket sales in order to gain cash to toss at the BLM and the toilet services, it is *not possible* for us (artists) to do what we do without money, and lots of it. Even physically getting there is more expensive for most of us than the ticket price. It takes tons…TONS…of money to put on the show that we do, and feed and clothe and protect ourselves from the elements, while using your trash fence and shade and toilets (personally I bring my own shade, but thank you, sincerely, for all the toilets). ;)

    In the example, I didn’t want to sell my art car for ‘lots of profit’ either, and was simply trying to gain funds to create a new art car, and to attend the ever-more-expensive Burn (TM) again this year, to continue contributing to the culture as I have for years. Just like you might say BM, LLC and its ticket sales does the same.

    How is this (and the INCREDIBLE amount of bake sales and yard sales and fundraising parties that theme camps and large-scale art installation crews and regular folks engage in) something which needs to be enforced against? Doesn’t that harm and inhibit, rather than enhance and protect, the culture?

    According to the T&C, I can’t gain funds to continue contributing to the culture by using photographs of my art car that I took at Burning Man (TM), nor can I mention what the art car was (or could be again) used for. If I do, I will get shut down.

    I have had direct experience with this recently, so I know that it happens.

    Meanwhile, I can still do a Google (TM) search for Burning Man (TM) and find aaaall sorts of *actual* commerical enterprises, online businesses which are likely not associated with the Burn (TM) at all, in locations as diverse as Chicago and China, selling everything from glow sticks to fuzzy boots to geodesic domes to ‘tourist’ acommodations in theme camps for thousands of dollars, under the name and logo of Burning Man (TM) and using images from same. They are making ‘lots of profit’ indeed from this.

    Just because you sometimes choose not to enforce the T&C in such cases, or enforce them on me but not commercial enterprise X, Y, or Z, doesn’t mean that the verbiage of the T&C is any less overreaching and disturbing and ‘hamfisted’ as you aptly put it. I think that’s the central point for lots of us.

    I hate to draw this analogy, but it’s in the forefront of my mind, and relevant. The Patriot Act granted shocking abilities to the government to investigate, silence, and even ‘disapear’ us, but they pointed out that it could be used to quickly and effectively deal with the ‘bad guys’ among us, and that it was necessary for our protection, so many people (including lawmakers) nodded along. And they didn’t appear to constantly abuse these abilities, so many people put up with it.

    But it still sucked, and was absolutely overkill.

    So, IMO, any solution to this issue must bring a satisfactory answer to the question: Where are our protections from you, other than a non-legally-binding internet discourse wherein you say certain infrigements aren’t your intent? You (meaning BM, LLC) use big strong scary language in the T&C, granting you unusual and stifling powers, then wink at us and say “trust us, just because we *can* doesn’t mean we *will*”. Is it any wonder that many of us find that unsettling?

    Seeing as I am not an expert in copyright law, I will leave the details of this answer in the capable hands of lawyers and LLC members and the EFF to hammer out.

    BTW, I am truly comforted to know that you can get/have gotten evidence of model release from every photographer who has submitted images of the nude people you display in your image gallery, even without a staff to do so. That’s amazing, if it’s in fact true…and if it is, thanks.

    Signing off,

    – Pamela

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  59. Scott Says:

    Dear Andie,

    Were you able to keep a straight face when you proofed this “opinion”?

    It is what it is and anyone thinking it is anything else is kidding themselves.

    This event is for profit. No shame in that, right Larry?

    Burn baby burn…

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  60. Craig Says:

    The road to hell (or in this case, atrocious usage policies and usurpation of photographer rights & property) is paved with good intentions. While “trust us, we’re just watching out for you” may be comforting and is probably something you even believe… your policies are an abomination against the creative expression you claim to embrace.

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  61. Doublejack Says:

    Haters gonna hate. I laughed out loud at “your policies are an abomination…” and similar ridiculous hyperbole.

    Hang tough, BMORG. Those of us who know what’s at stake understand that the current policy is the least bad solution to the challenges faced by all artists involved with Burning Man, photographers included. (I note I’m still not seeing any workable suggestions for a better policy which still recognizes all the realities of an event like Burning Man.)

    I do support the EFF and have donated money to them more than once, but in this instance they are radically oversimplifying things and stirring up a lot of unwarranted “controversy.” And doing so, frankly, in a way that seems a little too calculated to draw just this kind of attention to themselves as the “white knights” who will take on even the wildly-popular-among-their-core-supporters Burning Man.

    So BMORG, keep doing what you’ve done so well so far; continue to accept constructive criticism and evolve the event in positive ways, and try to take the eye-rolling, sarcasm and condemnation from so many commenters here and at boing boing with the salt lick they deserve.

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  62. spotman Says:

    I honestly do not understand why people are so upset about this. Burning man simply wants to keep the vibe free from people like mtv and budweiser having a hayday showing a bunch of beautiful dusty people possibly dancing or having a bud lite. Sure this happens at burning man, but I think it would become polluted if it was used in tv commercials. This is the point, if I am not mistaken.

    But beyond that, why are people upset? BM allows you to take as many photos as you want, and only asks that you be respectful of other peoples desires while taking them. Once you get home, you can send them to your grandma, the curious man in the yellow hat, or your theme camp. I mean there is tons and tons and tons and tons of freely available photos (ever been to burningman.com) so unless your intention is to make a profit off of the photos, I don’t see why anyone should be upset.

    Furthermore, burning man is expensive, so what? I feel like they provide so many services that I am surprised it doesnt cost more (city planning, infrastructure, dpw, health services, water trucks, port-o-potties, etc).. Honestly I don’t even care if it pays peoples salaries to help this happen all year round in the bm offices, I hope larry is sitting on a giant lazy boy right now, and he should be.

    The man burns in 20 days! Yee-haw!

    just my .02 :)

    Cheers!

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  63. Ron Says:

    As a long time burner and attorney, I must say that your response was most appropriate. Too bad no one on the other side was willing to engage you for further discussion on the subject.

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  64. salmon Says:

    Andie- “If there was a lot of profit to be made in running Burning Man, I’d see your point about us “selling” the experience with the image gallery, but if you look at the numbers, the “profiting on others” comment just doesn’t bear out”

    From what I’ve seen your revenues have NOT been posted in the last couple(three) Afterburn reports. We don’t know your profits….because you havn’t told us, AND for profit LLC’s are under NO LEGAL obligation to truthfully disclose your financials

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  65. SF Raver Says:

    JWZ of DNA Lounge wrote about this issue years ago.

    http://www.jwz.org/gruntle/burningman.html

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  66. SF Raver Says:

    “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive.” – C.S. Lewis

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  67. Jomama Says:

    Andie… You’re making my point for me. You said:

    “[...] you’d see quite clearly how we can tell which images are a violation of privacy”

    You can read a subject’s mind by looking at a photo? Really?

    If I were at burning man in a business suit (or whatever image you consider not a violation of privacy)… I still have a right to decide if I consent or not. You don’t get to make that decision for me based on what a photo looks like.

    Ok, so photographers promise to get model releases (FYI: I have the media package and contract, I know what it says and I understand it fully). You’re using the images for commercial use promoting the LLC, you also claim ownership of the images. So SHOW ME THE MODEL RELEASES. You cant or wont? You just assure me that someone assured you that they exist somewhere? Wow!

    I support you guys, even if I disagree with some of your policies… and to help you out I suggest you get releases on file in the event a subject sues you for the percentage of image sales you collect. Or for the millions in ticket sales you made by using their likeness to promote this commercial enterprise.

    As for personal use. After I asked permission, you (the org) denied me the right to hang my photos on a wall where people may see it in a totally non-commercial environment without prior approval of every image. You’re either misinformed or lying. Have YOU read the contract?

    Clearly you know better than the subjects in the images what they consent to… or maybe you’re just carefully crafting your brand image? Hmmm… I wonder which is the case…

    As for banning people, maybe you cant personally do that… but its the only recourse since your contract is ultimately useless in affecting your stated goals because photographers have legal rights you cant infringe (such as press) and your only recourse is to ban them. There’s a blacklist, its just not your job apparently. That does not mean it doesn’t exist. In fact you’d be remiss not to have such a list if you actually practice what you preach as far as protecting us from ourselves.

    As for the public vs private event. If its private, please tell the law enforcement officers and federal agents they’re not invited. That would be great! Thanks in advance.

    Your friend always,
    Terrified photographer who you intimidated into hiding his/her identity.

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  68. Andie Grace Says:

    JoMama – well, thank you for the help, but my word will have to do for now and we can pick it up in person or after the event on email. I’m curious about your frustrations with the system we have set up – that’s why i’ve been talking to photographers about this for a year now.

    And yes, that’s the point of a legal signature – it’s the reassurance that the releases exist, not just my word for it. Yes, I’ve seen releases from many photographers but am neither legally required nor human resourced to the point that I can maintain such files myself – hence, the legal clause requiring you the photographer to get them. I’ve required maintaining files for them in some instances (like books with nudes), yes. If you’re that uncomfortable with something you see, write me an email with the photographers’ names and I’ll confirm post event or have the images removed, as I would in any other case where someone saw an image they were concerned about.

    Come on down to Media Mecca, I’ll show you any part of our operation you want to see. We don’t sell images, so I think you misunderstand something.

    As for your show, you know, the possibility exists that we didn’t understand what you wanted to do, but we do review images before they’re displayed in certain public contexts, and as you can read here, there are plenty of participants who are in support of that practice, AND I’m saying I’d like to figure out a better way forward. So maybe drop the animosity and the accusations and come talk to me about this if you have suggestions, eh? I’m easy to spot; Mecca’s in Center Camp, and I assure you, there’s very little reason to be paranoid about me, of all people.

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  69. Andie Grace Says:

    should have read “have been talking to photographers and legal minds for a year now about having a forum of some sort to talk about evolving this stuff.” And by that I mean coming up with solutions as a community, not just as a business — but remember, we are one, and in some ways I feel like my job is to help my community *benefit* from that fact – so far, I think it’s helped foster a certain culture of immediacy to have these policies in place in BRC, and I’m loath to just whip around and change them without a very long conversation with everyone that has been affected by them, positively or negatively.

    Stay tuned, for sure. Time to go finish packing the office up to move to NV…

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  70. Frank Says:

    I’m a Canadian journalist and a frequent commentator on copyright law. I’ve never been to Burning Man and am unlikely to ever go. But I am affected by your organization’s support of the repugnant DMCA.

    Canada is currently considering new copyright legislation heavily based on the DMCA. Similar battles are being fought around the world, many of them balanced on a knife’s edge. Helping to lend any credence to the DMCA at this point thus has the potential to do immense harm globally. Not easy to measure, perhaps, but painfully real.

    You claim to be fighting for a certain kind of freedom. But all I can see is that you’re perfectly happy to achieve it at the risk of reducing freedom for the whole world. Maybe it’s time to recall the wisdom of the Pogo: “We have met the enemy, and they is us.”

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  71. Carl Lumma Says:

    I seldom see criticism of Burning Man I agree with, but this is an exception and Andie’s response is pretty weak in my opinion. Its length alone is suspect, as are its 35,000 obvious edit passes (it’s nice to thank an editor anyway).

    Do I really want BRC LLC and its lawyers to protect my privacy out on the Playa? No. I’m tired of being protected, and that’s one of the reasons I come to burning man each year. It’s such a relief! I’m all for being pragmatic and embracing change (including many changes brought about by larger BRC populations), but here I am really wondering about the orientation of BRC LLC.

    If you don’t want to appear on a porn site, don’t have sex in public areas. If somebody uses images of you for profit and you don’t like it, or images of burning man to misrepresent the festival and BRC LLC doesn’t like it, there are normal legal remedies for that. If those aren’t doing it for you, I think you should get a life. Not reach to bend already-misguided IP law to get satisfaction.

    In short: step away from the filing cabinet…. slowly.

    -Carl

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  72. India Crawford Says:

    Thanks for protecting Burningman. It is necessary. However, I see things like an art display at the Nevada Museum of Art and wonder how some artists get permission to share photos. What is the process when one wants to use a photo? It doesn’t seem to be explained.

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  73. Bob Lickter Says:

    I side with the EFF. There are already copyright laws on the books. This is completely self serving for the BMO who do not want to see a buck lost. I answered a request from the BMO for photographers who wanted to know my experience and was confronted with legal threats about my images. The Burning Man experience is so policed as is the road into Gerlach that after many years I say screw it. Jack Rabbits are varmints.
    Even posting comments is “be moderated for the benefit of all readers and at the sole discretion of the editors”.
    Just who determines what is good for the readers? If this is not censorship what is? The BMO apparently has the money to sue those that don’t benefit their goals.
    The BMO just adds another layer of law enforcement and control under the guise of naked gals and art///
    Screw them!
    Special Agent Bob

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  74. Scout Says:

    Pamela has the right idea. It takes a big corporation to run such a big event. If you don’t like it, don’t go. Although, I’d rather have her just sell this year’s ticket and use the money to go do something else, since she’ll probably spend the week tellin

    I feel confident that 99.x% of the participants don’t really mind having our pictures in somebody’s camera, or in their computer, printed and hanging on their wall, even if the photog didn’t ask our permission. However, the thought of having our picture published on some Internet site, or in somebody’s commercial book or movie, gives us the creeps.

    The Internet hasn’t changed everything, but the ease with which anyone can now publish something to the entire world is something truely unprecedented.
    Outside of Black Rock City* we live in a world replete with bigotry and anger. I’m not ashamed of what I do at Burning Man, but that doesn’t mean I want to have to deal with the real forces of evil (which I’ve not seen from BMORG). And, who can we count on to protect us from those forces? The FBI? The Nevada State Police? EFF? My right to spend thousands of dollars to hire an attorney and sue someone in some other state for posting my picture on the Internet without a consent form is useless. It also takes a big corporation to have the resouces to provide any effective privacy protection.

    Commercial photographers post these long essays (above), which boil down to “I’m using all of you for my personal gain, and I don’t care what that does to you.” I’m not absolutely certain that BMORG will provide me the protection I want, but I have more faith in them than I do any other alternative I can think of.

    In other words, “YEA ANDIE!!!”

    *EFF — keep track to see whether the evil corporate monsters now destroy me for having violated their copyright.

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  75. Adam Steckel Says:

    Superb response. I understand everything much better now, thank you!

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  76. Napoleon Says:

    Andie: Your post and comments sound like they were stripped directly out of a modern, more twisted version of Animal Farm.

    The use of an inherently bad law for any purpose is still bad no matter what your intentions.

    We don’t go to BM asking you (the benevolent dictators) to protect us from ourselves.

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  77. david camp Says:

    The last thing I want to see is Black Rock over-run by dickhead Girls Gone Wild-type photographers and videographers hovering over everything. It’s better to have a narrow video and photo usage policy than to open the doors to opportunists and predators.
    I don’t care if there are any photos of Burning Man at all. Part of the idea is the man is burnt up and gone, just like the experience itself.

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  78. Madame Boom Boom Says:

    Dear Burning Man Org,

    Thank you for doing your best to make sure that naked images of my boobies do not end up all over the internet making a profit for some a-hole.

    OR that any images of me on the orgasmatron do not end up on some scummy porn site.

    I sadly have not had pleasant experiences with “the people with cameras” on the playa. I call them “the people with cameras” – I won’t call these particular jerks photographers.

    There are legit photographers on the playa and then there are “the people with cameras”.

    Incident #1: Not asking and taking upskirt photos of me as I rode by on my bike… I jumped off my bike punched the guy in the face and took his camera to the nearest ranger. All the Burners around me were supportive and helped me grab his camera.

    Incident #2: Guy taking photos of my bare breasts. Didn’t ask. When I confronted him he got nasty with me. I forced him to erase them from his digital cam.

    I do not bare all at Burning Man for attention. I don’t WANT to be seen, but I know I WILL be seen – so I deal with it. What am I going to do…sit in my tent the whole time? Hell no. This is about my personal evolution.

    My want is to feel free and create. I could be topless in a tutu doing the can-can in center camp. Or I could be working a stipper pole. Burning Man provides the atmosphere and a safe place for me to do this, where as I don’t have that in my daily life.

    You do not have the right to take pictures of me, just because you have a nice expensive camera in your hands.

    Unfortunately there are predators that like to pretend to be photographers; they are “the people with cameras”. And these douche bags are the reason that the Burning Man Org has to set up some kind of restrictions.

    Yes, classic case…one butt head ruins it for everyone.

    Want to blame someone – go pound on the dude that took upskirt photos of me. Go take a walk in a woman’s shoes on the playa. See all the spectators that try to pull disrespectful stuff on you.

    You can get into all the legal jargon and argue back and forth. These restrictions no doubt piss off the real photographers and lawyers.

    But I am saying thank you to BM Org. I appreciate that you do this to make the playa a safe place for us to explore our sexuality and our naked selves.

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  79. Sound Man Says:

    I’m a rationale guy. But reading your thoughtful and thorough response to the EFF was an emotional (slightly tearful) high point. Thanks for being there for all of us (Burners) and thanks for giving an exceptionally clear argument for why we do what we do, but at the same time being willing to “evolve” in these changing times. Burning Man is still WAY cutting edge in so many regards. Although it was better last year ;-) (inside joke)

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  80. Pat Says:

    Hey folks, I am looking forward to my third burn. I can see where all the ISSUES led us to try and rationalize who is doing the right thing. You cannot legislate morality. BM is a great time. I have taken thousands of photos and not one has been published to a voyeur website or used commercially. I do know that many of my friends that would love to attend and cannot for a myriad of reasons have always expressed a wild fascination with the images brought back from each BM event. The artwork is spectacular. The people images are beyond description and most times a photo is worth 10,000 words. So the golden rule always applies. Ask, respect the answer and appreciate when you get to shot a nice photo. I have taken photos all over the world from Australia to South Africa and I have always asked for permission to photograph. The only times I have been denied permission to shot photos of private individuals was at BM and it was perfectly OK. Thanks for the time and the writing space.

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  81. seven Says:

    In a world bleeding with capitalism from every single pore that regularly sacrifices the individual for the corporation, I’m proud to belong to a society that will stand up and support each other… even when it doesn’t directly effect them as Andie has stated about exploitation. Does it directly effect Andie that some Woman with rainbow hair is caught having a shag on tape and played on x-tube seemingly without her knowledge? Prolly not. How many people see something wrong and say to themselves, “It’s not my problem.” or “I don’t want the hassle.” and casually wipe that violation from their memory choosing laziness over human interactivity and compassion?

    I’m drowning in a world of policy. Nothing’s personal. It’s just policy. If I miss my flight because my grandma died, the woman on the other of the phone will politely and curtly explain to me one more patronizing time that she can’t assist me. It’s just policy. I had a girlfriend that got mugged on a street in Chicago, and as she was struggling with the muggers several people walk on as she pleaded for help. (Someone thankfully did eventually stop and assist her.) If I overdraw my bank account I get charged $35. If the bank fucks up my account they don’t ever credit me $35 for their errors. More often than not, the individual is penalized for the benefit of capitalism.

    I understand the debate. The legalize smacks of everything familiar that daily fucks each of us in the default world, but the exercise of those rights have been to protect…. to protect our culture… to protect our individuality… to protect our freedom. That’s what I want to support. That’s what I want to belong to. If one playazin (oh that was a good word! Who wrote it last week? I forgot already!) is violated than our whole culture is violated. Community is as equal a cornerstone to our culture as is freedom. We can’t sacrifice one for the other. However, clearly there exists a rather realistic fear (considering most of our experiences in the default world) about how those rights may be mismanaged So, are we having a debate about semantics? Perhaps, until a better solution is achieved, the legalize the could still be expressed as it is, obviously giving BM org the rights to move swiftly when someone has violated what we all regard as sanctity, with added interjections exemplifying when the org has felt pressured to put those rights into action in the past.

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  82. Skanske Says:

    I recently saw a commercial for a large bank using Jonn Lennon’s Instant Karma as the soundtrack. If someone can use it and make money on it, they will. The BM policy may not be perfect, but I’ll take it over a watered down version that allows the slow whittling away of BMs rights and our rights as participants not to be commodified.

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  83. Marty Says:

    nancy robinson — “You don’t have my permission to photograph me. Ever. (Unless you ask nicely and I have final approval). Just because I am in public space does not mean I lose my right to privacy. And if it does, then Hello, Burka…”

    Well, whip out that burqa because that’s exactly what it means. By the very definitions of “public” and “private” there is no such thing as privacy in public. Even on your own property, if you’re in plain sight from public space you have no expectation of privacy. If you open the curtains in your home so that the room is visible from a public area, you have no expectation of privacy about what can be seen through the window. For that matter, if you use a phone with a wireless handset, you have no expectation of privacy because you’re broadcasting your conversation.

    On actual, public, communal land? Fuggedaboudit…

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  84. roymeo Says:

    “the cultural expectation that you’ll ask first before you shoot has become second nature to Burning photographers/videographers”

    No.

    Not really.

    There’s unfortunately a LOT more that needs to happen for that to be true. Far too many people need to be empowered say “Hey you, did you ask first?” It SHOULD be to the point where it’s quite alright for strangers to approach a photographer to make sure. And even if they are wrong, and permission has been asked and received, no one feels embarrassed or ashamed.

    THAT would be a lot more in the spirit of the “cultural” part of the “second nature” “expectiation”.

    The only photograpters who have that aren’t creeps already.

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  85. Ruggie Says:

    I’m in FULL agreement with you on this, Andie. I dropped a couple of posts over on BoingBoing for a suggestion (You can see it here. Posts #134 & 135).

    I’ve never been to Burning Man yet, but I’ve been dying to go ever since a friend of mine tipped me off to it years ago. As I said on BoingBoing, even though you have that “scary over-reaching power”, to see that you have SELDOMLY used it tells me that you truly are looking out for the attendees rights and best interests, and I trust action more than I do words.

    Those whom blather on about your power or piss and moan about not being able to use their works in YOUR EVENT how they see fit clearly tells me that they are going to burning man looking for their own profit. I do think that some of what I suggested over at BoingBoing would definatly be helpful.

    I do think, however, that if an agreement is made by both the Photographer and the Subject to show their content in a non-commercial way, BRC should butt-out of that, because it was made between consenting parties. And therefore, BRC no longer needs to “look out” for them.

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  86. Ian Starr Says:

    I love the idea that Burning Man is making this HUGE profit and that there is no legitimate reason to pay year-round staffers…

    I have worked full-time for Burning Man for many years in the Tech Department and there is much more work to do than what we have hours in the week or resources for. I do not make close to the salary I would if I was working in the commercial sector. I do it because I love the event, love the people I work with and enjoy contributing to making it happen.

    The infrastructure involved with this event is huge and does not maintain itself without humans at the helm.

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  87. Christopher Hunter Says:

    Any response that has to be a long as yours, reeks of rationalization. Imagine if Woodstock’s owners tried to enforce the same BS rules against the attendees? Just another desperate attempt at control of what other people do? Let go of the illusion of control. So what if people “exploit” images of nude attendees by selling them? Aren’t there a slew of nude hippies in Woodstock movies? Is anybody really harmed by that? Is Burning Man going to become like the Scientologists, suing everyone who publishes their “religious” secrets? Lots of luck with artistic freedom if that’s where your headed! I’m with the EFF.

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  88. Boulder Burner Says:

    Thank you so much for your balanced, intelligent and eloquent response. When the EFF article appeared on fark.com, I had many non-burner friends send it to me with a kind of “see, look, burning man doens’t hold to it’s own ideals” kind of attitude. I did my best at responding and included many of the points you made in your article above, only less eloquently. I found it very disappointing that the author of the EFF article didn’t make any attempt to show things from Burning Man’s side of the story. Thanks for defending the policy which I think enables Burning Man to continue being Burning Man!

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  89. MamaKitte Says:

    I don’t understand why this is so complicated to photographers. If you don’t like the rules, don’t go. ATTENDANCE IS VOLUNTARY! Nobody is forcing you to buy a ticket. Nobody is forcing you to attend. This is a PRIVATE PARTY.

    You are NOT entitled to use my picture just because you took it on public land. You are NOT entitled to use my picture just because you are professional. You are NOT entitled to use my picture just because BMORG operates in the red, or heaven forbid, turns a profit. You are NOT allowed to profit from images of me or my art. I am grateful for the BMORG for protecting me from YOU!

    If you find the rules oppressive DON’T GO! Nobody is making you attend. If you hate it so bad, stay away and let us get on with our event without your prying lenses.

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  90. Joe Smith Says:

    The arguments put forth by Burning Man are without any merit. As a previous commentator noted, Burning Man’s rights against commercial exploitation are already law, no different than the rights of any individual or property to prevent their likeness from being used for commercial use without written permission from the owner or individual. What Burning Man is trying to prevent is editorial use without their censorship. They wish to cast their event according to their spin and thus want to prevent the freedom of the press from choosing how or what they report to the readers. Burning Man while wrapped in the cloak of “Freedom and Art” is no different that a Rock Star, Celebrity or even the NFL trying to protect their business model and profit from it in the process. You can use artistic rhetoric to cover it up, but it’s still about control and censorship.

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  91. Prof Dave Says:

    People are so confused about the concept of “rights” in America. When I teach Criminal Justice courses at the college level, it is necessary to disperse many erroneous preconceptions that people have picked up from media and other sources.

    In a public space, nobody has a “right to privacy.” The 4th Amendment to the U.S. Constitution does protect people, as the Supreme Court has stated in its opinions, but that protection is limited to certain places wherein one has a “reasonable expectation of privacy.” A public event is not one of those places.

    (There is a strong legal argument that the Constitution does not actually enumerate a right to privacy. When Griswold v. Connecticut, one of the cases that led to the result in Roe v. Wade, was decided, the justices described privacy as a “penumbral right” originating between the lines of the actual constitutional text.)

    Also, 4th Amendment protection varies in power or strength from place to place, being strongest in one’s home and practically nonexistent in public. One has no constitutional right against being observed or recorded in public – by anyone. In particular, the Constitution limits the abilities of the government to intrude into our lives. It has no bearing whatsoever on the abilities of private individuals such as photographers.

    “Rights” against exploitation without consent exist in statutes, not the Constitution. (Linguistic purists might note that “exploitation” and “without consent” are redundant. Sorry. [grin]) As other commenters have pointed out, there are laws that provide recourse for the victim of such exploitation as having one’s likeness misused. However, there are limits to that protection as well. The courts have held that “public figures” have less protection than private individuals. When you perform or present at Burning Man, does that make you into a public figure? Interesting legal question, and it could turn out either way in court.

    I’m not a lawyer but a legal scholar, and of course even if I were a lawyer I would abjure giving legal advice in a forum like this. I find the legalistic stylings of Burning Man LLC to be interesting and some of the responses seem rational and well informed. These issues will remain controversial as long as there are so many different “reasonable” (a legal term of art) ways of interpreting the law.

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  92. Tom Says:

    If the EFF objects to your use of the DMCA to enforce your policies, it is likely for the same reason I object to it: I don’t trust you.

    Not you personally (I don’t know you personally). I don’t trust BM to use this power responsibly, in the same way I don’t trust any other corporate entity to use it responsibly. *This far*, you report very few uses, all of which seem justifiable t me. What happens when you are gone, and some less responsible individual is in your place? Will the policy go with you? I doubt it. The DMCA is too much power in the hands of corporate rightsholders, and not enough in the actual creators of the images.

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  93. Todd Gardiner Says:

    As I see it, there are three basic alternatives here:

    1. Photographers have the same rights at this private event as they do walking down the street. — That means that any contentions between the subject of the photo and the ultimate use of the photo boil down to a legal case between the photographer and the subject.

    Burning Man cannot intercede (I suppose they could point out the use to the subject, if they could figure out who the subject was; possible offer monetary assistance for the legal suit against the photographer). The sole burden of defending privacy falls on the subject of the photo. There is no central location to send concerns about use to, since BM Org does would not be involving itself in enforcement.

    Even a complaint about a commercial use would have to go against the photographer, not the ultimate user of the image. Example: Lexus would just pass along the complaint to Joe the photographer, and keep using the photo; you’d have to sue Joe, which may not impact his passing the image along to others.

    In this scenario, it is impossible for BM Org to protect their participants, and impossible for them to prevent salacious images from tarnishing the public perception of the event.

    2. Cameras are banned from the event. Aside from a few press that sign right-to-edit releases, no one gets to shoot any images of the event, even for private use.

    Since the Burning Man LLC pays rent to the federal government, which then cordons off access to the land for the event, this is a private event. “Public Land” is not legally the same as “public space”, in which anyone has free access to. Malls (private land) are in some cases considered “public space”. This is just the flipside of that arrangement.

    No doubt this would make a few of the posters above quite happy, but it’s likely that an overwhelming majority of participants would be upset that they cannot even take pictures of their friends to reminisce about their desert vacation.

    3. Use imperfect legal tools to interpose the BM Org in the issue of photo vs. privacy “rights”.

    For online use, the most expedient method appears to be based on the DCMA. Certainly handy when you have a small staff and limited resources to engage in legal complaints.

    And by “owning” the copyright BM Org is allowed to directly contest any use of the images. Not pursuing protection on a particular image use means it might loses rights to that image, but obviously those would be images that BM Org has not interest in controlling.

    On the other hand, having photographers sign a document stating that they hold a release on file protects BM Org from those instances where a subject rightfully (and through legal challenge) complains about image use. Again, not ideal, but certainly possible with the current staffing and financial resources that are allocated to this beleaguered department.

    What I’m not hearing from the comments on this forum is any fourth alternative that meets the the competing goals that the Org and the participants have on this issue.

    Off the top of my head, the “best” solution that avoids the clunky DCMA, risk of use without a release, and completely constraining photographers would involve setting up a much larger media department. Staffing the media group with fulltime image reviewers, a record keeper for onsite copies of releases and lawyers to bring suits to judges for proper (and lengthy, and time consuming, and expensive) review would be a start toward forming a new procedure and policy.

    Certainly someone has a better suggestion? Or should we just stick to one of the three scenarios I listed above?

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  94. Waldemar Says:

    While the intent of Burning Man’s rules can be debated, the problem is that Burning Man’s agreement does not recognize that intent in the agreement they offer to photographers. For example, did you know that, if you sign the agreement, that all internet use (even friends & family) is forbidden unless Burning Man approves it? Here’s paragraph 7 of the Burning Man photographer’s agreement (emphasis and note mine):

    6. Upon execution of this Agreement by Photographer and without execution of this Agreement by Burning Man, Burning Man grants the Photographer a license to enter the premises of the Event (the “Property”) and to record images reasonably necessary for the Project. The license granted under this Paragraph does not authorize any use to be made of the images recorded at the Event.”

    “7. Upon execution of this Agreement by Burning Man, Burning Man grants Photographer a license only to display and sell the still photographs of images obtained at the Event at gallery shows and in editorial projects concerning the Event, except as provided in subparagraph (b) [Note: subparagraph (b) doesn't exist!]. In particular, without limitation, no images obtained at the Event shall be used for any commercial endorsement, *on the Internet*, in any book, on any greeting card or poster, or provided to any stock agency, unless Burning Man has previously provided written consent for such specific use in subparagraph (b), which consent may be withheld for any reason whatsoever without Burning Man’s sole discretion. The license granted in this Paragraph *is limited to a Project* that comports with the description of the Project in Paragraph 2, and no other use may be made of the footage obtained at the Event. Unless and until this Agreement is executed by Burning Man, Photographer agrees that Photographer shall make no use of images or sounds obtained at the Event.”

    Combine this with a rather extraordinary way of signing this agreement. Normally a proposed agreement is not valid until both parties sign. This one is different. In this case, if the photographer signs, sends a proposal to Burning Man, and Burning Man rejects it (which they sometimes do), then according to paragraph 6 of the agreement, the photographer is not allowed to make any use of images, not even under the friends&family category. The photographer can enter Burning Man, but so can anyone who hasn’t signed it.

    Here’s another fascinating one:

    “15. … In the event any use is made of the Photographs in excess of the use authorized in writing by Burning Man in this Agreement, including any unapproved assignment or sublicensing, the copyright of the Photographs automatically is transferred and assigned to Burning Man, and Photographer appoints Burning Man as its attorney-in-fact to execute any documents necessary to effectuate such assignment.”

    I don’t see how any photographer could sign something containing paragraph 15 unless he just forgot to read it, thinking it was boilerplate. It isn’t. What it means is that the question of whether the photographer even owns the copyright to his own work is forever muddled. This essentially prevents work from getting published, as what publisher wants to risk publishing a work to which the author does not have unambiguous copyright?

    It’s too bad that Burning Man at the moment made the actual photographers’ agreement inaccessible on the web (the rights and responsibilities page in the website is different; it’s not the agreement). It’s fascinating reading.

    Although Burning Man’s intent stated in this blog is arguably reasonable, what they’ve chosen to put into legal writing is quite another story. As is usually the case with legal agreements, stated intent doesn’t matter; the agreement states that it supersedes any other statements by Burning Man.

    This hurts artists the most. As others stated above, this is not needed to prevent commercial use of secretly recorded photos; existing rules do that just fine, and no ad agency is going to use a photo of a person for an ad without a solid written release. On the other hand, a gallery wanted to display some of my photos, but I couldn’t let them due to the wording of this agreement, even though, per Burning Man, anybody would be allowed to post the same photos on his Facebook page. I tried to get Burning Man to correct some of the more obvious flaws in the agreement, but haven’t been successful yet. I’m hoping that the revisions that Andie mentioned will help. Until then gallery shows will continue to fall through due to this issue.

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  95. Joseph Mann Says:

    I see the policy as thus. I come to Burning Man as not to be me. For the one time in life I don’t have to be on. I don’t have to worry about the outside world eploiting me. BURNING MAN. Get it. I see the policy as a way to allow me to not have to be in your world for just a short time and not have to worry about it. Screw all outside marketing people. Leave me alone for just one week of the year. One week of the year to not have to live in your world. Damn we are out in the middle of the desert away from you all trying to get away from capitalism for just one single week of year.

    Please go away and allow the playa and Burning to Not be part of your world.

    When I go home, I want the world to stay out.

    Please stay out of our home. When we leave…there will be only tracks.

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  96. Todd Gardiner Says:

    I don’t agree with your assessment of paragraph 15. If you only use photos for the states and agreed purposes of the project that you are submitting for this contract, the copyright never shifts for your hands.

    Further, since the photographer cannot transfer the rights to the photos to a publisher, what risk is the publisher running? The photographer would be the one liable for breach of copyright, by my understanding, and only if they publish the photos after being told that the ones selected are not acceptable to the Burning Man Org.

    Another note, this contract actually ALLOWS the photographers to gain copyright (under this limited condition) to their photos. The standard agreement on the back of the ticket does not allow this. By signing this agreement, you are actually gaining more rights than the standard ticket holder.

    Far simpler, just ban photography. It works for concerts, stripclubs, movie theaters, etc.

    Also, this agreement only requires that you submit the photos to Burning Man Org for approval before your gallery showing. Without this request, the wording of the contract stands. I’m confident that if you had only asked the org, you would have successfully displayed your photos.

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  97. Todd Gardiner Says:

    My wife was playing devil’s advocate today at dinner. What is the worse thing that happens when the copyright is held by Burning Man org.

    I argued that it was equivalent to retroactive “you can’t bring cameras to the event”. You still have your images, but cannot publish them in print or online. (Currently Flickr, Facebook, et al are not considered “publishing” but for this arguement, let’s pretend they are also forbidden.)

    Unless BM Org actually has the photo themselves, they can’t use it, since copyright does not equal ownership. Steven King can’t bang on my door and demand the first edition hardback of Carrie from my bookshelf; he can only prevent me from photocopying it.

    On the other hand, in those cases where BM Org actually has a copy of the photos, they could, in theory, publish them. My wife’s argument was: assume BM Org went totally evil in ten years? What could they do with your photos?

    Well, if I had submitted them online to the website, I already check-boxed an agreement that let’s them use the photos. I theory, evil-Burning-Man-of-ten-years-from-now could be using them to make flyers in a camping gear cross promotional with Walmart as their partner. I believe the online agreement alone assumes this risk, however.

    If I had submitted the images for approval of my photo/video project and Burning Man choose to disallow their use, they could, according to the contract, use them for a video aimed at marketing the event to Fraternities/Sororities. Just the act of attempting to gain approval to publish also grants possession of the photos to Burning Man.

    What the contract is missing is a limit on their ability to use any photos and videos submitted to them for the purposes of gaining approval to publish.

    One more point that I did not clearly state just above: this Photographer’s Agreement that we are referring to is a specific waiver that actually allows the Photographer to have the copyright and permission to photograph for purposes of a stated project. Any images made for that project must still be approved in order to be published.

    The BBC producer I talked with last year at Media Mecca had no problem with this contract. National Geographic, newspapers, other media; they all sign this. And aside from the concern I discovered tonight, I’m confident that Andie Grace and team will approve any images that I have releases for, as long as I allow them to see that I’m complying with my responsibilities as a photographer at Burning Man.

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  98. BunnyLove Says:

    thank you for sharing your thoughts and feelings…all of you have given me a lot to think about…and respect.

    hear two simple words:

    “welcome home”

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  99. BunnyLove Says:

    thank you for sharing your thoughts and feelings…all of you have given me a lot to think about…and respect.

    now, all i need is to hear 2 simple words:

    “welcome home”

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  100. Ryan W Says:

    Let’s put it in the simplest terms, if you found a picture of yourself in an intimate situation from the burn and it was posted on some website, you might want it taken down because that is your right. Otherwise there are no issues, probably 99.9% of all photos posted somewhere stay there and no one has any issue about it. I appreciate the rules that are there for those ‘special’ circumstances.

    If you’re going to take a photo, I like that old saying in these parts, “Ask First”!

    Thanks for posting this!

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  101. Waldemar Says:

    In response to Todd’s comment, the problem is that Burning Man’s photographer contract explicitly forbids any kind of internet use for anyone who signs it. Not even Facebook-like personal is permitted under the contract as currently written. That’s why gallery shows fall through.

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  102. Todd Gardiner Says:

    @Waldemar
    Andie made it clear above that display of images on Flickr, Facebook and other photo sharing sites is not enforced.
    Additionally, you can always ask for a waiver.

    Specifically, I had a discussion with her about using my images taken under the Photographer’s Agreement on the 3D photo assembling site, Photosynth, when I was at BM last year. She said that was “all cool, go for it.”

    Additionally, just about every Jack Rabbit Speaks has a link to a professional photographer’s online gallery. So there is certainly SOME method by which you can get BM Org to allow you to post photos online.

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  103. John Vlietstra Says:

    A nice presentation of the competing articulations of how photography, as an art, can either increase or decrease the common good.

    I do not view any issue that involves human beings to be simply resolved. I believe conflict is only temporarily suspended to allow for a current “solution” to work while we continue the dialogue in a way which allows all interests to be represented, and more importantly, heard.

    I believe current Burner policies towards photography, both implied and explicit, represents the best current articulation. And, let the dialogue continue.

    V

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  104. Paul Says:

    uh, Hi guys.

    we decided it would be in your own best interest to take control of your first amendment rights while you are at burning man. it’s for you own good. we know better, thanks for understanding. It’s for your own good, really!

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  105. Phil Says:

    Having watched BM for nearly a decade and hoping to attend in the coming years, I thoroughly support the organisers restriction of media and respect their place as a commercial organisation. This structure is required in the modern world. This is not a free event and nor should it be.

    It’s highly amusing that people chase their ‘constitutional rights’ because this event is held on ‘public land’. Well let’s be clear, an otherwise barren site is transformed through the blood, sweat and tears of hundreds of individuals working to a common theme, based on a set of values. As part of this ‘management reserve the right’. Is that clear enough? Decades from now ‘ooh they might be evil’ but what is so hard about respecting the organisational ideals and having faith in what has happened before and what they continue to demonstrate.

    As a human being, when you look me in the eye, the discourse between us is based on experience, capacities and ideally faith in the common good. Oh yes, you have a team of lawyers standing behind you and a society entrenched in legislation. But this doesn’t exist so that we can conduct ourselves as value-based humans. It exists usually as a mechanism of control and commercial leverage.

    Unless we pass this fixation with personal rights being holier than though in contrast to the experience of the group, we will never advance and continue to splinter against each other.

    Is it fair to say Burning Man is a space that exists for a week and then another fifty one in peoples hearts; somewhere to converge, experience and share?

    Attendance defines the experience and from what I read, this attendance is sacred and life changing to most. If you are not there to be a part of it; if you *must* capture, spread and gain from BM through reproduction of imagery.. well, just shut up and don’t. You find it offensive that a naked woman wants to kick someone in the head for photographing her? Because you are on ‘public land’ and have ‘rights to take photos’? How selfish are you? Go make your own festival with its own boundaries, and when people pass the threshold, state whatever you like.

    Keep it up BM. Lead for the common good. Greetings from Melb, Australia.

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  106. jaru Says:

    I see you have many supporters, but there are several issues I have with your comments/policies/event copyright.
    The first problem is you are on public land. Does not matter that you “rent” or “permit” for the event, it is public land. Therefore photography and videography is allowed and I think if I took a picture and published or sold it from your event that fact alone you would likely ultimately lose in court.
    Ultimate copyright law sides with the creator of the image. Now for your event it would get a little sticky in several ways. But, unless you have everyone sign a contract or agreement prior to entering, you ultimately have zero rights to any photographs I take there. I own 100% of the image. Primarily because it is public land. If it were private land you have clear rights and can enforce as much as you want.

    Now you can not permit cameras if you choose or you can have every ticket sold come with an agreement and rules including photography and upon purchase that person has agreed and basically sign a “contract with you and you own there images. You then would have the choice of what to approve or police the licensing. But without a photo agreement the I sign I am sorry but I own those images taken on public land. I do think but am not sure on pornography shots or and public shot displayed in a pornographic way, I believe are illegal, public land or not. Might be a state thing, I know Cali has a law that basically says if I take photos in public or private places of people and use them in an explicit way without permission that is illegal. I have no problem with that and those people should be held accountable.

    My other problem is that this whole thing has grown into a marketing money machine. This event started out as an artistic expression and was about freedom. I realize it has grown into something very large, but to me personally I think this event should remain a completely open artistic canvas. If you do not want pictures of you naked to be taken then I would suggest you not take your clothes off. This is a digital age and everyone has a camera. You will never be able to stop it. This should be an event that continues on an open artistic freedom and expression event.
    What about the person or group that goes to the event and create a wonderful piece of art they are proud of. They invite anyone who wants to take videos or photos of their work of art. It is photographed 1000′s of times at the event and they have no problem showing it off, it is their art and they are proud. Who owns those photos? Black rock? The photog? The people that built the art? The gov because it is on public land?
    Now one photog of the 1000′s sells that image to someone else. Canvas, magazine, stock photo, whatever. Do you really think Black rock can claim ownership of that photo?

    Without a written and signed agreement I highly doubt you will find a judge in your favor. Especially if the people that created the art had no problem of people taking photos of their art at the event on a public space.

    You want a solution? Sure here are my thoughts. 2 choices.

    Just let it all go, be free and embrace it. Last time I checked there was no such thing as bad publicity. The more images of the event the more people want to check it out. Everything is allowed except pornographic use. Get over yourselves and suck up some humble pie and let people do what they want.

    Or

    Make a ticket purchased a signed agreement as to what rights you want to retain. Clearly stated. When I buy a ticket to the zoo, I am agreeing to not sell images of their animals. Granted they are on private land, not public, so it still could be sticky if someone really wanted to fight it, but basicaly you own them all. You then can decide what to own or not.

    or (I guess I have three)

    Ban all cameras cell phones, and video recorders. Anyone caught is kicked out. Any images taken are illegal. Again each ticket would have to be a contract signed.

    I respect that it looks like a lot of people support your decision and direction, I just think if I were to take photos at your event and sell them you would be hard pressed to prosecute me. You could hassle me sure but ultimately, I own my photos, not you. not even 10% Sorry. No signed contract, no deal.

    or maybe moving it to privately owned land? Good luck and I hope your event goes well this year. Have fun!

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  107. Ian A. Wender Says:

    Interesting debate. As an “advanced” amateur photographer, I offer the following:

    1. I always follow the rules (i.e. sign the camera form at the gate, tag my camera, etc. )
    2. I always ask permission, ALWAYS.
    3. I have never had anyone say “no” to having their photo taken.
    4. Most burners “ham it up” after I’ve asked permission.
    5. I never sell or commercialize my photographs.

    It’s about respect. I respect the rules of BMorg and it’s participants and I request they do the same for me.
    P.S. I have a burning man tattoo on my leg…does Larry now own it.

    Ian

    P.S. I have a burning man tattoo on my leg…does Larry now own it? I’m kind of attached to it.

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  108. Taldar Says:

    There’s a difference between what is done and what can be done. It doesn’t matter that Flickr photos have not been plucked; Burning Man *could* change its mind any day, without needing to draft any new policies whatsoever, and bring its hairy foot down on everyone’s free expression (protected, mind you, by the constitution, which, in theory, has precedence over any law in the U.S.).

    If “The Man” (legally, not physically) really just wants to protect against commercial use, as this article would have you believe, he could change his policies accordingly.

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  109. sfmike Says:

    As the publisher of my own photoblog about San Francisco’s Civic Center, this has been a fascinating discussion to read. I take photos of people in public all the time “without asking,” and my major ethical rule is to make sure they aren’t mean or unflattering and that the photo helps to tell a story. I also don’t make a dime off of my “art journalism,” including Google ads or such.

    I spend a lot of time at cultural institutions like the San Francisco Opera and the Symphony and the Asian Art Museum, and they all have their own sets of photo prohibitions and rules, most of them protecting copyright or keeping a live performance from being disturbed by photography. None of their policies, however, seem quite as draconian as Burning Man’s “we own your right to display any image anywhere about our event.” This is genuinely creepy, and Andie may think she’s the coolest, most reasonable person around, but her rationalizations make my flesh crawl.

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  110. Stephen Says:

    I am 100 percent behind Burning Man on this one, and if it weren’t for this policy I don’t think that the festival would be the same. I was pretty apprehensive about going to BM and one of the things that made me feel more comfortable was the photo policy, which is as important for setting expectations as it it is for actual enforcement. If it weren’t for that I might stay at home.

    The accusations that Burning Man is being greedy or self-important are obviously not a fair reflection of BMO as an organization, and smell highly projected. They are also very angry and seem like the writers probably apply the same statements to every organization that doesn’t open things up ti the extreme extent tbat they’d like.

    The complaints about what Burning Man would do in 75 years if it becomes an evil corporation completely miss the point. The world that we live in changes on a daily basis, and you can’t live your life reacting to what somebody might do in 75 years. Instead, to build a better world you need to guide those daily changes so that they will be as virtuous as possible – be proactive, not just reactive. Your rights will never be protected solely using a reactive strategy.

    How does that apply here? Because Burning Man is a proactive participatory art culture where people try new things that hopefully will change them for the better and enable them to take their new perspectives home afterward and improve the world around them as a result. But they aren’t as likely to have a really transformative experience if the pressure from recording devices is expanded 100-fold. It just doesn’t work that way.

    This is another example of EFF failing to think critically enough about the negative aspects of technology that accompany the positive ones, which severely limits it as an organization, and is why I don’t support it, although I agree with a number of its initiatives. Now that it is attacking the privacy of Burning Man I am even less likely to support it. Content owners have rights in the 21st century too.

    I also found John Gilmore’s (EFF Founder) comment here about Burning Man being a party (as opposed to something meaningful like the EFF) to be remarkably condescending.

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  111. Stephen Says:

    Another point: how many times have you heard somebody say, “If you don’t want a picture of you doing it, then just don’t do it!” That will hold true in this case – people just won’t go to Burning Man in the first place and you’ll kill off the event.

    Would EFF say the same things about nudist colonies? BM is not a nudist camp but there is a lot of nudity. Where do you draw the line and start to protect people?

    Or are we now in a brave new world where you have nothing to fear as long as you have done nothing socially unacceptable?

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  112. Dangerkitty - Jaz Says:

    I would not want my experience to be photographed or videographed and put anywhere including editorial uses, coffee table books, etc., without my express consent. And I really like the idea of spray paint to the lens for offenders. That said, Burning man has done what it can to protect the rights of individuals so they don’t have to worry about legally protecting themselves. And I hope that someone will be able to put forth new legal policies to Burning man without inpinging on the current intent. Because if the status of this policy changed to give people the right to photograph without consent and publish (or even a change in the culture of asking first); Black Rock City would not be what it is now, and it would not be worth driving 2,000 miles to go somewhere that turned into everywhere else.

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  113. Paul Says:

    Thank you!!! Love the language and stance. Look forward to future times :)

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  114. Sondra Carr Says:

    I don’t trust easily, but watching the BMorg over the years handle many sticky situations has made me trust you all far more than I do any other organization of which I’ve been a part. I stand behind your policy and I trust that you are discussing ways to ensure that future groups in charge will follow a very similar policy. Overall, I think your soft policy approach is the most sustainable I’ve seen and am always grateful to see it in action. This response was fair, informative, and extremely gracious – just what I’ve come to expect from you all. Thank you – we don’t say that enough I think – thank you all for doing this.

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  115. Andie Grace Says:

    http://www.theregister.co.uk/2009/08/25/freetards_bully_burning_man/

    I object to the namecalling, I must say, but thought to share this follow up post from the Register.

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  116. Augmented Says:

    Wow
    Amazing Debate!!
    This year will be my sixth consecutive Burn.
    I am not a photographer… never taken pics at BM.

    In my earlier days at BRC I, like many of the commenters,
    was filled with an appreciation for the non-comercialized and
    independent communuty of Burning Man. I nearly worshipped
    an unknown heirarchy for their ability to pull off such an amazing
    and transformative social experience. I longed each year to come
    HOME and once more live and breathe in precious BRC, protected
    from the outside. These days due to the growth of the city and
    my own personal growth I see burning man as a reunion party.
    I am not looking for the virgin experience. I do not come to be
    protected from the world anymore. I come to see my friends and
    be with the type of people I find on the Playa. The event, the community,
    the space is transforming. I don’t even want it to be the same.
    I want evolution to take over and see what a society which is OPEN AT
    THE TOP can become… I dont want to keep the world out
    I want to invite it in….

    I hear people saying that if you don’t like it don’t come!
    I have some news for some of you:
    Someones opinion about one aspect of burning man does not
    neccesarly carry over to the rest of the show.
    People like myself who want burning man to give up it’s attempt
    to control video and photography at the event will not stop coming.

    It sounds however like perhaps many people who want tight control
    for their protection WOULD decide to not come…..

    I think that allowing free video and photography would change the event
    no doubt. It seems however that there is a group who want to get back
    to the utopian days of ask before shooting and no shisty porno stalkers…
    DUE to the public nature of the BLM Black Rock Desert location setup
    I feel that those utopian days are gone for Burning Man.

    I suggest that there be another Event held on Private Land where the
    control some people want is possible

    That way we can keep having Burning Man the way is has been the last few years
    and it can slowly slip wherever it is going. I believe this option actually allows
    for the community to be free in its direction because I think that at large the
    majority of BRC citizens just wants to be able to go home for one week each year.
    For those who feel like they are no longer returning to the home where they felt safe and protected a second event on private land is probably the best they
    will achieve.

    Much respect to all the work that goes into building BRC each year,
    equally to the heierachy of Burning Man LLC for the outstanding infrastructure and to the myriad of private camps who fill in our beautifull city.

    Thanks
    Augmented

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  117. Carmen Schentz Says:

    I’ve been following this issue for a while, now, from different sites/perspectives. There are a lot of folks who are expressing themselves with a lot of emotion and loyalty to one side or the other and the rhetoric is piling up. The article at the Register, to which Andie provided a link above, is one of the worst, one-sided pieces I’ve seen and it amazingly manages to completely miss the crux of the issue (and I usually like and frequently visit the Register.) In fact, it’s so off the mark and over-the-top, that I would have been ashamed to associate my organization with it, if I worked for BMORG.

    I have never attended Burning Man, but I’d like to add my interpretation of the situation.

    I’ve been an artist all my life. I’ve used many forms of artistic media–including photography. And, yes, despite the opinion of many posters/Burners, photography is a form of art.

    Many folks are focusing on copyright and copyright law, as if it is the center of the issue. The center of the issue is really contract law, as BMORG is making use of a contract to gain control of certain rights (including copyright.) Essentially, BMORG is making acceptance of the terms of a contract conditional on a photographer’s entry into the event. The point of contention is that BMORG is using the contract to assume rights that normally default to others.

    It is important to protect artists/creators and their copyrights. This MUST include the copyright belonging to the artists AND the copyright belonging to the photographers. The trick to providing the best protection is by adjusting the “rules” to achieve the most benefit for all parties, while causing the least harm.

    As some have stated, copyright law already provides that a photographer cannot sell or commercially use images of individuals or their artwork, without express written consent of the individual or artist. The BM contract does not increase this protection. What it does is make enforcement more convenient through the DMCA and by centralizing the enforcement with the BMORG. Therefore the benefit provided by the BM photography contract is not additional protection, but convenience.

    Now as for harm, essentially the BMORG contract allows it to assume control of the rights of TWO parties. The BMORG will not only gain ownership of the photographer’s images and rights, but also the rights of the individuals and artists whose image or artwork is featured in the pictures. Everyone has been so focused on the loss of the photographer’s rights, it has been completely overlooked that BMORG is also gaining the rights of the subjects of the photographs. Would you like to decide how an image of you or your art can be used? Too bad. BMORG now has that right…according to their contract. Of course, the photographer agreed to this contract, not the subject, so it would never stand up in a court of law. But, they can quickly and efficiently deny uses of photos that you may have approved.

    So, what it boils down to this:

    The harm – Loss of ownership and copyright control by the photographer (no small thing) and loss of choice by the subjects or artists.

    The benefit – Convenience.

    I think most reasonable people would see this as a poor tradeoff. I believe this is the problem that the EFF has with the BMORG photography contract.

    If protection from voyeuristic non-participants and photographers who don’t ask permission is what Burners want, this can be achieved by BM security. Surely an event of this magnitude has security. After all, real-world law must still be maintained and participants must be protected in case someone gets dangerously out of control. Those who break the rules regarding permission can be ejected from the event as opposed to having their cameras (or faces) broken, as some have suggested.

    One last thing to consider (and I apologize for the extremely long post). This is a lot of trouble to go through for so little benefit. If the contract doesn’t provide any additional “real” legal protection to the individuals and artists who attend BM — (BMORG and it’s attorneys HAVE to be aware of this) — what are their true reasons for taking all of these rights? Many have conjectured that BMORG wants to aggressively police its image and maximize its profit. That seems likely, but if, as BMORG reps are being truthful when they deny it, then what are their real reasons for the contract terms? Whatever they might be, they can only be self-serving as there is obviously no benefit for either the photographers or the Burners (other than the aforementioned convenience factor.)

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  118. Andie Grace Says:

    Carmen –

    “”Everyone has been so focused on the loss of the photographer’s rights, it has been completely overlooked that BMORG is also gaining the rights of the subjects of the photographs. Would you like to decide how an image of you or your art can be used? Too bad. BMORG now has that right…according to their contract.””

    The thing is, we do not use these images – the copyright transfer is only so that we can have leverage to stop unwanted uses of imagery, and again, that only comes up when certain things happen: an undesirable commercial use happens without permission, or someone’s privacy has been violated and we’re helping to enforce their complaint. It’s acknowledged that copyright is a heavy tool to use for this, but so far it is what has worked for us and our participants to protect our culture, and that’s what we’re trying to do – not use your images or images of your artwork without your permission. What you refer to as convenience sure doesn’t feel very convenient to me – it’s quite consumptive of time, money, and resources for us to take on this supplemental role in helping to enforce the privacy of participants and preserve the noncommercial nature of our culture.

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  119. Harry Stewart Says:

    After three days and nights in the wilderness I had a dream,…….there i was,there i was,there i was…….sitting in the playa , watchin a solar powered satellite liquid crystal display when a voice from the contraption said, ” If your going to Burning Man you better take your Visa Card because they don’t accept American Express”…
    ………. hhhhhuuuuummmmmmmmmmmmm***

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  120. Apollonaris Zeus Says:

    What are you talking about. You don’t know shit! what limits art. art is limited by the Man. burn the man. create the art. burn the art. create the man.

    You are an artist, photographic artists. we are not limited you. create your art, publish your book, sell your art, but do not profit from the BM name, but your own.

    Do not seek a title without permission. ASk BM and show them the final production keep it in the vein of the event and approval is yours.

    no one artist has even been prohibited from selling their work of that is truely artistic

    just remember to return the gifts to those that help made them

    To the playa

    AIIZ

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  121. HeyNow Says:

    I am registered media technician with a certain TV Network. Media Mecca has given me tags for my SLR so that we may use the still photos as well as video we shoot in our production. When I take personal pictures of myself at BM, do I need to get permission to use a picture of myself on my personal website or private facebook?

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  122. Tomorrow Says:

    “We’re also not at all interested preventing participants from sharing their personal imagery or impressions of the event on third party sharing sites in a noncommercial manner, so long as they observe the concerns about privacy and commercialism…. Frankly, we’d rather gouge out our own eyes than get in the way of that kind of personal expression in our community.”

    As an amateur photographer who has carefully read the photo rules every time I attended Burning Man, I had no idea until reading this article that this was a reasonable thing to do. So thanks for that clarification. I always felt stifled and scared to share my noncommercial, non-privacy-invading images on flickr or other sharing sites because the license says:

    “I UNDERSTAND AND ACCEPT THAT NO USE OF IMAGES, FILM, OR VIDEO OBTAINED AT THE EVENT MAY BE MADE WITHOUT PRIOR WRITTEN PERMISSION FROM BURNING MAN, OTHER THAN PERSONAL USE.”

    I would like to encourage the license be changed to somehow clarify that sharing photos publicly is within the scope of personal use.

    From the article above it sounds like the word “personal use” generally just means noncommercial and not privacy invading. I’d like to see this publicly clarified, so I know that I can do public things with my photos so long as they are noncommercial and not privacy invading.

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  123. David Hobby Says:

    I am not convinced.

    You say that this is to protect people’s privacy, and to prevent the use of Burning Man images to sell products. I call B.S.

    First, there is no reasonable expectation of privacy for people running around, clothed or not, in a large gathering of thousands of people. If you want privacy, it is probably best not to run around naked at Burning Man.

    And second, there are plenty of pre-existing laws and precedents protecting both images of people and artistic installations from being used to sell products without the people’s (or artist’s) permission.

    At it’s core, the language is really no different than any org trying to execute a rights grab that supersedes well-established IP law. The language is just flowery and self-aggrandizing.

    Both then everyone trying to pull off a rights grab does that. And you should not be surprised when people around the web start calling BS on it.

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  124. Katie Says:

    I know if I were attending, I would be horrified to find out that someone had been filming me without my permission or even without my knowledge. For the people who argue, “But there are already legal protections for the use of people’s images commercially!”, that’s fine. You ignore the fact that these days, people illegally use the images of other people all the time and post them in very public forums. You may never know that a video of yourself has landed on a pornographic website or anywhere else. And you also may never know who sees it.

    If that doesn’t make you uncomfortable, then that means you are either a saint or a person who has no reason to be concerned if pictures or video of you doing things that, outside of Burning Man, would be considered inappropriate or even wrong, and might be seen by people who know you or who may come to know you. I’m guessing 99% of the people at Burning Man aren’t like you.

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  125. Nanker Phelge Says:

    Burning Man is a NWO Psy-OP. Basically Bohemian grove for the plebs.

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  126. Rene E. Gamache Says:

    I have never attended Burning Man. I have friends and relatives who do attend. Their efforts and experiments in self expression are a wholesome part of their being. My association with these people has been enhanced because of the experiences they enjoy.

    I buy art work. I enjoy the non-normal expressions or concepts which can flow from Burning Man. Few forums exist where stimulation of artistic expression occurs on this scale. I want this forum to continue without EEF’s invasive interference.

    This Senior Citizen regrets an infirmity of age which impedes participation. However, persons attending bring me great pleasure through their interactions with me.

    Enjoy. Sincerely,

    Rene

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  127. jessica stallings Says:

    Wonderful how people bitch–then say they attend?
    My husband arrived at BRC today. This is his first time being there, and while he normally does not have a problem with being photographed, I am quite confident that he would be incredibly colorful in his reaction if someone peeked in and snapped him while ferociously scrubbing his balls with baby wipes (as to not kill himself or others with the smell dirty sweaty scrotums can put off–as well as not killing his bride when they finally reunite next week), and then put it all over the web. He doesn’t even like when *I* take shirtless pictures and put them on MySpace (my pictures are set to friends only), and I’m the woman who he swore to love the rest of his days.
    On a real life note, I am a burlesque dancer. I know people have pictures of me performing that I have never seen. It bothers me, yes. But I also know it is quite hard to regulate cameras in a public setting. We’ve tried.
    So, I have to say I’m on both sides. Though I will probably never attend BM unless I get a nice RV where I *can* have outright privacy, because your vehicle is considered private property. I know that because I take advantage of it at the hospital my mother works at.

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  128. jessica stallings Says:

    I should clarify that I *smoke* in my car at the hospital. that’s it, nothing else.

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  129. Johnny3Sticks Says:

    I totally agree with Andie and BM on this. There are days I don’t like it, but i agree. To understand you will actually have to read through all my opinionated crap to find out. Read, don’t read, go to B.M., don’t go, it’s all up to you.

    I am not a lawyer, I’m a photographer, but more of an artist with a lens. So my comments will be filled with no less b.s. then all the rest of them, it’s just my b.s.

    First, The photographer owns the rights to their image. The subject owns the right to theirs. The two must agree for it to be used by either party. This is my understanding of US and International Law. Of course if it is posted that photographing will be happening in a aforementioned area and your presence in that area constitutes agreement to use your image, then the shooter is covered. Under U.S. law, I don’t believe you can give up your rights under a blanket “we own all images taken” statement. It somehow falls under the intellectual property laws, I don’t feign to understand and don’t really care to because it means my brain would be filled with the B.S. that is ruining our society. But it would take a lot of money and lawyers to beat it, certainly not worth it.

    Now BM may take place on public lands, but to make it more complicated, as I recall they take place on Native American Land and are part of the Indian Nation, which has it’s own sets of laws. So basically you have what ever rights they allow you to have, nothing more, nothing less.

    Now I get all of the discussion and I understand it all. As an Artist I want people to see my work, yet I don’t want it to be commercialized, abused or diminished in it’s association. It is not such an absurd thing, after all the Beatles managed to enforce it for years until someone bought half of their catalog and f-d them, but I digress.

    There was a time in my youth that I believed that laws were actually created to protect people, diluted though I was. In reality any law seems to impact the freedom of someone else. So you are either doing it to someone or someone is doing it to you.

    That is the reality of our world. Now at B.M. all the B.S. stays at the gate. The laws, the rules, the regulations, everything that prevents you from being you every day, all of it. Cross through the gates and you enter Xanadu. Be the person you always dreamed of being. Take down the facade that you wear in your everyday existence. Just fucking “BE.”. Make a statue or dig a hole or lay back and explore the Universe above and around you. Sit there and stare at a rock for 12 hours if you find solace and answers there. What ever you do, when you pass back through the gates and leave Xanadu, you also leave behind any fear that you may have that what happened will ever be known by more then you and your god. And it’s not to say there are no rules, but the rules that do exist are pretty much common sense ones, hurt no one, leave no trace, don’t judge.

    Now as I said I am a photographer. I don’t just like to take pictures, I shoot to live. I am happiest when I am taking pictures, no matter of what or when or where. When I take pictures at Burning Man it is no different, but they only exist for the time I am inside the gates. Now if I couldn’t take pictures, i could not be me and just would never attend again. No picture no words can explain it. never ever. They are the essence of me. They may represent the essence of someone else, I don’t know, but they are like looking at the face of creation. If someone wants so badly to understand it, they should go. My pics are for me, not because BMDRG says so, because it is so. Because someone seeing them may only see a nude woman, breasts, a penis here and there and a cacophony of other images, but they will never understand any of it. You cannot explain what it feels like to be free to someone still shackled.

    I have tried over and over to explain this to someone like this: it is like being part of a miracle, an impossibility, it is like being nothing and everything at the same time. But it seems nonsensical to even say it now.

    So I guess this will be the best way to explain it: I once attended a concert by Paul McCartney and 100,000+ of my closest friends. The possibility of these people getting together in a metropolitan area and not having some major problems was an impossibility. Yet, we did. People were kind and helpful to one another. People acted like they actually cared for each other. And after hours of performing, and for the very last encore, I experienced 100,000+ of my closest friends light up the stadium with their lighters and sing “Let it Be” to Paul. You may be able to imagine it, you may be able to find a picture of it, but you will never understand the emotional impact. For one moment I know I experienced something more magical and more real then I ever imagined. 100,000+ people singing, each eyes filled with tears at the sheer beauty of the moment. This was humanity at it’s best. It was one moment of true Peace. I would give anything to feel that again, but it didn’t happen at any of the other concerts I attended after that one. It was like being awake and alive for the first time.

    B.M. is that times 10.

    So if you are interested in selling your pictures or videos, or worried about who is making how much money from B.M., you are in it for the wrong reasons and probably need to leave your shit at home and go there to find yourself. Because the most valuable thing you will ever have is your soul, and it seems to me a lot of people seem to have misplaced theirs, or maybe they just sold them.

    People used to take years to go “find themselves”. At B.M. you can do it by crossing through a gate.

    Of course, that’s just my humble opinion. I could just be an asshole like many of the others on here. But at least I know I am.

    Peace.

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  130. Alexa Says:

    I am looking for a ticket to this years burn. Can anyone help me? If so please contact me at alexaland here: alexaland (at) mac.com thank you!!!

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  131. Sam Taylor Says:

    I think the answer to the blog’s titular question, “Snatching digital rights or protecting our culture” is clearly “both”.

    The question is whether it’s worth doing one in order to do the other. I’m not convinced that it is. I will say that I have a great deal of sympathy with the motivation behind this decision. However, I think trying to regulate a problem out of existence can cause more harm than the original problem did.

    One of the things I like and respect most about Burning Man is the idea that the responsibility for creating the even is devolved to the participants, who are free to express themselves in doing so.

    Forcing me to sign over to the Burning Man Organisation control of photographs I’ve taken is clearly in conflict with that principle.

    I expect, for now at least, that the Burning Man Organisation won’t misuse its newfound control over millions of individuals’ photographs. But organisations change, and temptations are hard to resist. I don’t support this move for the same reason I don’t support invasive stop and search laws. Sure, they may be a short-term solution to a particular problem, but whenever you place too much control in the hands of a small group of people administering affairs for a large group of people, the temptation to abuse that control has historically been difficult to resist.

    It’s a question of principle, and communities, whether temporary or permanent, live or die by their principles.

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  132. Misty Says:

    Note from a humble FEMALE burner. . . . I am not a lawyer or photographer, but I do have a successful public career which in turn supports my home, husband, and children, and affords us the means to step out of ordinary place and time for one week a year at burning man. I do so with a little more caution every year as more MEN with cameras seem to focus on capturing images of nude women. Have EFF and porn.com worked out a side deal together?? If the walls of privacy protection – and yes, we do need that, come down burning man will not be the same. Classic, the EFF will fight so hard to obtain what it wants and if it does, the burning man of today will not be the burning man of tomorrow, because privacy went away. How many times have you seen that history repeated? It is a huge job to oversee, I am so thankful someone is taking it on.

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  133. Todd Gardiner Says:

    I would remind people that even if the BM org controls the rights of use for your photography, they don’t actually OWN your photography unless you send it to them. It is amazingly hard for “a small group of people administering” the photography rights of others to abuse that control.

    At best they can only prohibit some or all of those photos from being published. A sort of “retroactive” event-wide ban on cameras. Certainly more effective than trying to search every car coming in through the gate to confiscate cameras.

    In my eyes, the only ones that have a legitimate complaint to the “back of the ticket” wording are professional photographers that hope to sell/display the work they do at Burning Man. For these people, the organization has arranged a different contract so that you keep your copyright, but agree to different stipulations.

    Where is the problem here?

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  134. sonic fast food Says:

    Thanks!!! Nice post!

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  135. Libertarian Says:

    The amount of upper class, bay area, non minority, socioeconomic privilege exhibited by these blog comments is horrifying.

    The EFF is absolutely right.

    If Burning Man(c) wants to operate on federal land, it must abide by federal law. Your body paint does not shield you from the law. Your glitter does not blind the law. Your Ketamine and MDMA do not warp the law.

    A contract whose clauses are illegal is not only unenforceable, but (if i remember correctly) null and void.

    If all of you who spend hundreds of thousands of dollars on gigantic art installations and sound systems and lighting systems and food and housing and water and drugs and alcohol and electronics and fuel were to pool your resources and buy a large chunk of land, this issue would disappear.

    Buy your own burning man(c) grounds. Police the fence line with your own staff. Set up your own rules. Operate as a private club. Hell, then you could confiscate all non BM (hmm, BM, how appropriate) approved photographic equipment at the gate, if that’s what you wanted to do.

    You’d have nearly total control. That’s the beauty of Private Property.

    What you do with it would be totally up to you.

    Now, get off of our land.

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  136. Bewildered Says:

    Even if the participants of Burning Man did want to pitch in together to purchase all of the Nevada desert and regulate every last detail of regulations enforcement, policing, the banning of abusive photographers and regulation of media (which really, would be a near impossible task to attempt given the sheer amount of activity and people at this event)….they would lose the spirit of the whole movement. The purpose would be lost.

    Burning Man, from what I understand, seeks to use that week out of the year to escape from the myriad of rules and regulations that are enforced (usually be ourselves and the tyranny of schedules, clocks, employment, commitments, etc.) and be able to enjoy life without fear of critique, hate, or abuse.

    Yes, it is a contradiction and perhaps an impossibility to conceive that a group of people would want to get together with as little outside influence as possible, and then expect the little government assistance available to protect them from fraud and from manipulation. But at the same time is it really right to say to hell with them that seek those things out if their picture shows up across the internet, forever changing the way future employers, friends, neighbors, etc. will view them? Is that fair? Is that right?

    Maybe so. But I’d like to think that if it were YOU whose compromising picture became the desktop background of everyone you knew, you would want someone to do something about it. You’d want protection.

    also-it is SO unbeliavably damn annoying when people sign off with the phrase “cheers!”

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  137. Another Libertarian Says:

    @bewildered
    It is right. It is fair. It is legal.

    Have your event on federal lands, be subject to federal law.

    Have your event on private land and be much less so.

    This seems pretty easy to understand.

    Some Consumerist wolves – recognize them?
    http://money.cnn.com/galleries/2009/news/0910/gallery.neiman_marcus_gift_guide/index.html

    Oh, and I’ve frequented both Black’s Beach and Wreck Beach, in the naughty naked nude. Do I really care if my picture was taken or not? Do I really care if
    such pictures end up on the web or part of someone screen saver? Would I want to work for a place that cared about such things?

    Let’s just say that, if I did, I wouldn’t have taken off my clothes on a public beach.

    I weep for you.

    Cheers

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  138. John Church Says:

    Brings to mind a quote that’s yards shorter. Those who would give up a little freedom for security, deserve neither. Welcome to the modern world and good luck on attempting your fences.

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  139. Hmm Says:

    You are not about preserving or promoting culture. You are about creating a secret society and presenting a false face when you are not with your brethren. You should not have the right to do this. It does not matter if you are doing this out of malice our out of cowardice. Your behavior is still shameful.

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  140. MacKenzie Says:

    If it is a simple issue of control then Berning Man should have the event on private land. There’s plenty of sand for sale out there cheap. Festivals change venues all the time. Yes people love this venue but that doesn’t mean the won’t love the next one just as much or more.

    Report comment

  141. Ray R. Says:

    I very much agree with the points made in the above piece.

    For years there’s been a sneaking suspicion that the camel’s nose has been trying to peek farther into the tent that is Burning Man.

    The idea that my image or any piece of creativity that I contribute both in and to the event would be usurped under the aegis of ‘commercial freedom’ has been a point of ongoing concern.

    I’ve been around long enough to remember when images were used for a lite porn movie “fire Party in the Desert’ or some such nonsense. I know that the event has been approached by members of the band Metallica to allow the event to serve as a backdrop for yet another rock video which they’d undoubtedly profit from and I have no doubt that the various beer, wine and liquor representatives have pounded at the gates for permission to vieo/film/record images of OUR event for THEIR ultimate profit.

    Fortunately, the BMORG has pretty much stayed the course to insure that the energy and creativity that so many bring to the playa is not comodified at the expense of those who’d selflessly bring their art and their expressions to the desert.

    I can appreciate the EFF giving voice to certain concerns which have recently been expressed yet I can also say with due respect that the EFF is not always correct nor is it the final arbiter of what constitutes ‘rights,’ ‘freedom,’ or any other abstract prerogative that suggests commercial entities are fully and automatically entitled to. In fact, I’d go so far as to suggest that such abstract, intellectual exercises more often than not elevate the intellectual parasitism in question to a loftier perch than the topic deserves. That the rights of the groups and individuals who actually create the resource that many seek to mine is not fully taken into account is egregious and myopic in the extreme.

    In short, I am not even remotely interested in accommodating furtive individuals or soulless corporations profiting off of my creativity in any way, shape or form. Let them feed vicariously off the inspiration of people somewhere else. Let them be parasitic off another collective body of work other than the event we collectively construct and share.

    Report comment

  142. Moob Says:

    I don’t believe your permit to use the land grants you permission to stomp anyone’s ownership of their own photos taken with their own equipment and with commission, any more than claiming an illegal right to do so means you have that right. It’s absurd and a highly corporatist tactic. It’s public land. Anything anyone doesn’t want to turn up in a photograph shouldn’t do it there. End of story.

    Yes, you want to protect the event. That doesn’t give you absurd rights broadly canceling people’s personal liberty. Protect the event to the greatest extent that you can within the bounds of what’s right. Reach beyond that, you’re just another bunch of fascists, regardless of your motivating ideal.

    Report comment

  143. Moob Says:

    Sorry, by “with commission” I meant “with permission”

    Report comment

  144. BrotherMichael Says:

    This is a complicated issue. Here are my two cents.
    Burning Man promotes IMMEDIACY. DIRECT EXPERIENCE. Taking photographs of others without their approval or consent is one step removed from creating your own personal immediate art. You are simply caturing the way light falls on THEIR art. Unless you have the subject’s consent, you are exploiting them for your own artisic expression. NOT OK.

    Burning Man promotes radical self expression. How radical is your self expression if you are willing to do it in private, but be ashamed about it in public? How radical is it to be ashamed of your body or actions in front of your family or co-workers? The playa is not an insulated bubble. What happens there IS part of the default world, too. If you are doing it on the playa, consider your actions to be recorded in the default world also.

    It is not only the media or strangers who can exploit or violate privacy.
    Last year I rode in the World Naked BIke Ride on the playa and attended a party afterward where we were all naked and free and having fun.

    I later discovered that several of my OWN FRIENDS had photographed me and posted the pictures on their friendster pages. They thought it was cool and funny. My family and co-workers have access to my friendster page, and can follow the links to those pictures easily.

    Personally, I don’t care who see’s me naked. I’m just bringing up the point that your privacy can be violated in the most unexpected ways.

    Report comment

  145. Wick Says:

    The bigger you are, the more you need government, but the more government you have the less freedom you have.

    This debate includes all the classic lines from: the Government vs. the anarchists. The two points of view have conflicting values and rules. However, the Government promices to offer something in return for the freedom that the anarchists give up. Has BM(TM) ever actually given anything of value to the artists for the rights the photogophers give up? Actions count, promices do not…

    How has BM(TM) actually protected any artists under this “I own your copyright.” rule? Has any photo been removed from the public domain because of this legal doument?

    Just curious, I plan to come to Burning Man(TM) first time this fall. I’m a folk singer, but I might want to bring a camera…

    Report comment

  146. Sunburst (C Hunter) Says:

    I took photos at BM2009 of art and sculpture and friends that I know and want to put them up on a website for the personal use of myself and my friends to share the images. Is this verboten or is this OK? I have no intention of selling anything or advertising the fact I have photos up and will be adding robot.txt to instruct spiders like google to NOT index my site. is that OK or is that a no-no? – Sunburst (3x burner – Bm2010 will be #4!)

    Report comment

  147. Weasel (Matthew Brindle) Says:

    I’ve been burning since I first hit the playa 4 years ago. Kind of restored my faith in people after a pretty rough time, I have a pretty special place in my heart for it.

    I’m also a photographer, I’ve been photographing in the club kid and alternative scenes in London for years. If anyone’s ever asked me to delete a photo of them or asks me not take their photo, I do ask they ask. I know I don’t have to legally, however I wouldn’t be happy seeing/using the image knowing the person in shot didn’t want me to. I’m a portrait photographer and artist, not a reportage, stock photographer or ‘pap’.

    The main thing I wanted to know was, this year I wanted take portraits of willing burners for a book. With half the proceeds going to charity (hopefully euroburner or alternative arts related) and the other half into (hopefully) the next book. If I was clear, open and honest about how the image was to be used would I be able to use the images solely for the book and the projects website – is it likely to get approved?

    I would most likely have a booth at my camp, rather than interrupting a moment. Hell I’m usually dancing like a fool when out on the playa even take the camera out with me.

    If not, it’s a bit of a shame. If everyone participating is willing and honest seems a bit silly to not be able to do it. Was looking pretty forward to it! But the above post has left me wondering if something like that is even possible now.

    Report comment

  148. Mark Rogge Says:

    I have two Honda 3000eu genarators for sale ready to use at this years Burning Man. $1200 each. have a great time!!! e-mail me at mark here: mark (at) roggeconstruction.com

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  153. Sydney Chandler Says:

    I just want to say that I have a great deal of respect for the people who allowed me to photograph them. I never take photos of people without asking permission. I have some very good photos that I would love to share on this website but don’t know how to go about it. Can anyone help me with this?

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  155. Digital Photography Says:

    I don’t believe your permit to use the land grants you permission to stomp anyone’s ownership

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  156. Psycache Ziran Says:

    Very well spoken.

    More than anything we need protection from “for profit” shenanigans. The more I interact with burners on a year round basis, the less I am concerned with how I profit/benefit, and more and more with how I am challenged and encouraged physically, mentally, emotionally, and spiritually.

    Thank you for such a clear explanation.

    Cheers!

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  157. OSden Coolidge Says:

    So let me get this straight:

    the “freedom of expression” festival has more f—ing rules than the Republican National Convention: rules covering media, music, rights to your own art, rules about photography – it also has a strict ticket policy and security gate

    F— off you busy body rule makers — if I wanted to go to someplace with a 28 page manual on how to live I’d go work in a cuble for 5 days instead of going to Burning Man.

    Seriously — this is very illustrative of the plauge affective society- well meaning busy bodies who make more and more rules and laws without thinking through the consequences.

    Know what works? Freedom

    I hope someone with some balls sets up a real festival right next door to Burning Man – free, no rules just like 20 years ago

    Report comment

  158. tommy Says:

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  159. Lara White Says:

    Burning Man must continue to fight for the protection and privacy of its participants. Where else in the world do participants enjoy the freedom of expression that is possible in BRC? Burning Man does not exist to sell newspapers or blog ads, so the needs of bloggers and journalists to have free access must not be put before the freedom of self expression that is possible only with an assured level of privacy. If there is a constant concern of being recorded for future clients and bosses to see and judge, how can one feel free to self-express without concern of future consequences? The people who complain bitterly are not burners; they do not understand.

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  160. GuitarDave Says:

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  206. John Doe Says:

    I’m a professional photographer and find that we – like most other people who don’t go to law school, have to spend quite a lot of time learning about copyright, usage, licensing, property and model releases, etc. There’s a trend in this comment section that much of the support for Burning Man’s policy doesn’t understand that people have very clear rights which have been crafted by lawsuits and judgements accumulating through the history of our country.

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