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

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.)

About the author: Andie Grace

Prior to her 2012 retirement from the staff of Burning Man, Andie Grace was a member of the Burning Man Executive Committee and the manager of the Communications Department and the Regional Network - in plain English, that means she went to an inordinate number of meetings. Her staff bio is here.

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