By Daniel Burton (dan@spaz.org)
By Daniel Burton (dan@spaz.org)On May 8th, 2003, I received a message from Jim Graham (ronjon@burningman.com), complaining about one of my eBay listings for fairy wings whose title read "Fairy Wings & Crown-Ren Fair/Goth/Burning Man."
"You might not have realized it," he wrote, "but the Burning Man name is trademark protected. If you're at all familiar with the event, you understand the sensitivity that participants and organizers have when the name is associated with products for sale, like your wings auction."
He wanted me to remove the reference to Burning Man from the listing. After thinking about what he was saying for a little while, however, it dawned on me how ridiculous this seemed. Nearly my entire social circle had been involved in Burning Man from the time they were old enough to go onward, and most of them were far more concerned with the commercialization of the Burning Man festival itself than a few independent artists cashing in on its popularity.
"I find it quite ironic," I wrote back, "that you are so concerned with someone using the words 'Burning Man' to auction off something that someone might actually want to use in a costume at Burning Man, but you are completely oblivious to the fact that the Burning Man festival itself has been hijacked by a 'Burning Man Organization' that sells expensive tickets beyond the price-range of many of artists who started the phenomenon, sets up perimeters, and excludes anyone who for whatever reason can't pay.
"I was around early enough to catch some of what was going on when Burning Man was still something close to a T.A.Z. [Temporary Autonomous Zone] and a non-commercial event, and I can tell you that the present incarnation of 'The Burning Man Organization' is far from the spirit of that. The idea that you can control and charge admission to a community event based on a 'gift economy' stinks of hypocrisy."
I also disagreed with the very idea that anyone could control the words "Burning Man." As a long-time anarchist, and even longer-time libertarian (I was once even a Libertarian candidate for State Assembly), I have always been a staunch supporter of freedom of speech and opponent of censorship — including over-reaching intellectual property laws.
"The idea that any one person, or organization, or hierarchy can own, control, and censor the words 'Burning Man,' I wrote, "is completely counter to the original spirit of the T.A.Z. that was Burning Man. What happened to the concept that there are no spectators? What happened to the idea Burning Man is not just another carnival put on by some production company where passive audiences pay for entertainment? If things have reached the point at which some official organization that puts on the festival and charges admission can control the words 'Burning Man,' things have effectively reached that point.
"For God's sake, we're talking about a TRADEmark on the phrase 'Burning Man.' How much more commercial than that can you get?
"If the anarchic spirit of Burning Man really was still alive, freedom of speech would hold, there would be no official organization that controlled the phrase 'Burning Man,' or any official interpretation of it. Everyone would be free to interpret its meaning and use it as they wished.
I had also discovered, upon looking up the trademark, that it was not any kind of non-profit organization that held it, but Black Rock City, LLC, a for-profit, joint-stock, limited liability company. Although it had some consensus decision-making written into its charter, there was no mechanism for participation by all the people who have been involved in past festivals. All decision, effectively, could be made by a select group of managers. I took issue with this:
"If the original spirit of Burning Man were still alive," I wrote, "there would be no official 'Burning Man Organization.' Instead Burning Man would self-organized by its participants through a complex web of coordinated, decentralized actions and spontaneous contributions — a self-directed, self-forming order, rather than one imposed by some officialdom with its official rules of procedure, permanent hierarchies, and standing bureaucracies.
"(There is no excuse for not doing things this way. Other things like the Autonomous Mutant Festival, Rainbow Gathering, etc. have all done this for several years, remained free, operated without permits, and avoided being shut down, all with no signs of changing — and mostly because of the determination of the participants and organizers to keep things this way.) "
I also told him how I had wanted to go to the festival for several years (since 1995 actually), but first college classes got in the way, and after I finally graduated (in Computer Science), the year of Burning Man 2001, the economy crashed, I had trouble finding work, and I had not been able to afford the tickets since. To try to pay my rent, I had teamed up with a struggling artist to sell her works on eBay, and both of us were just trying to get by. I didn't think what I was doing was so wrong.
"Here in the outside world," I wrote, "money has to be made for mere subsistence, lofty ideals of a gift economy won't make that money, and class differences have real impact. Apparently the Burning Man Organization would rather isolate itself from those class differences in a bubble than operate in a way that is conscious of them — in doing so it reinforces the hierarchies of our society and effectively excludes a whole economic stratum of people from its event — something I think is antithetical to the self-directed participatory spirit that Burning Man originally had. It effectively isolates the experience as an isolated yuppie vacation complete with the authority structures and economic class composition of the workplace.
"I hope you see the irony of that. I hope you see the irony of the fact that Burning Man itself has become so expensive and commercial, yet people get upset when a struggling web programmer uses the phrase 'Burning Man' to help a struggling artist sell her fairy wings so both of them can buy food and pay the rent."
I also had some concerns with the legal claims that Jim Graham was making about trademark infringement, which I voiced. I didn't think that "Burning Man" was a phrase that anyone should be able to register as a trademark in the first place. I was pretty sure that the term was in common use long before Black Rock City, LLC, or any preceding official organization came in to take things over, and that it referred not to just the organizing efforts of any one select group or the tickets that they sold, but to the entire gathering, everyone in it, and network of activities formed by everyone's participation in creating the spectacle. After all, this was an anarchic gathering that claimed to have "no spectators." (In legal terms I was arguing that the phrase was not "distinctive" as a reference to any product or organization.)
Legitimacy of the trademark aside, I also didn't think that what I was doing was a real infringement. Trademark law was created to allow companies to market products under a brand name and have people be able to buy that product without confusion about where it came from. In other words, it was designed to protect against confusion and outright fraud about the source of products, not to give anyone an outright right of censorship. Since my product wasn't competing in any way shape or form with the Burning Man festival, nor did it claim to be official Burning Man merchandise, I didn't think there was any cause for confusion, and his claims seemed ridiculous on the face of them.
I decided not to let this closet authoritarian's power trip get in the way of my life, so I decided to keep the listing. I did make one concession though: That I would try to make sure none of my future listings looked like official Burning Man merchandise. This seemed reasonable — so my next listing's title was "Red Fire Fairy Wings-for Burning Man/Rave/etc." This seemed entirely clear — I was claiming that my item was good for the Burning Man event, among other purposes like Raves, not anything officially connected with Burning Man itself.
Instead of responding to any of my ethical arguments on a human level, Jim Graham chose to act like a bureaucratic automaton. His only response was purely legalistic. He had consulted with a lawyer and decided my understanding of trademark law was wrong. He then informed me that the "Burning Man Organization" would be filing a VeRO request on eBay to have my auctions removed. He mentioned nothing at all about the morality of what he was doing — I guess he wasn't even thinking about it.
So here we are today — I've been given no choice but to go public with this. The VeRO request on eBay resulted in the removal of my auctions, but not until they were already over. I've decided to challenge it anyway, because I believe that it was wrong. I will continue to use the words "Burning Man" in future eBay aucitons as long as I am able to do so. If I can't use the phrase on eBay, I have decided to sell my items elsewhere, using the phrase, just to prove my point. If for some reason I'm even forced to take my advertisements off the web, I will turn to peer-to-peer file-sharing networks and to e-mail. I am also considering a lawsuit to invalidate the "Burning Man" trademark entirely — And if Black Rock City, LLC doesn't back down soon, I have future plans for all other sorts of fun — a mixture of civil disobedience, hacktivism and other actions which you can neither anticipate nor imagine.... Stay tuned.
I am also drafting a list of demands that will have to be met before I stop using the phrase "Burning Man" in a commercial context entirely. The following is a rough draft, which I sent to Jim Graham and the Burning Man organizers in response to their VeRO actions:
These are not set in stone, and subject to change, but they represent the kind of changes that would have to happen before I would take pride in Burning Man as a genuine non-commercial non-authoritarian environment and feel compelled to respect it in the way its official hierarchy is asking me to.