AFTERBURN REPORT 2004
Burning Man's legal needs cover a more diversified range than ever in 2004. From contracts for outside contractors, artists, and vendors to the new Regional Letter of Agreement, many departments needed legal guidance and advice. This support was provided by a dedicated group of avid Burning Man participants - who happen to be, as good fortune would have it, some of the best attorneys in their respective fields.
The worldwide growth of the Burning Man Regional Network created a need to formalize the evolving relationship with individual regional representatives and groups. Hence, the finalization of the Regional Contacts Letter of Agreement in April 2004, which resulted from many months of work with the Regionals Committee and one of Burning Man's lawyers. That attorney has joined the committee on an ongoing basis, continuing to advise about the network, its management, and the issues that face Burning Man's Regional Contacts as they organize people and events in their areas. The Letter of Agreement outlines the rights and responsibilities of both Burning Man and the individual Regionals groups. For example, Burning Man has agreed to provide support to the Regionals and at times to allow the Regionals to use the Burning Man name while ensuring respect for the principles it represents.
Anyone can create a gift bearing an image of the Man, but trademark enforcement efforts continued in 2004 to prevent commercial sales of our symbol. Over 70 individual interactions resulted, most centering on eBay and related commercial sales over the internet. A designated and vigilant volunteer scans the eBay website about once a week for violations, and almost every review session seems to reveal at least one or two sellers attempting to capitalize on the Burning Man name to sell goods unrelated to the Project. Thanks to eBay's latest tool for Verified Rights owners (VeRO), Burning Man can easily remove listings that violate its trademarks. (This year's actions affected everything from "Burning Man Codpieces" to candle holders, and more.) The Legal team prefers to work with these sellers on a one-to-one basis, leaving the VeRO program for a last resort if we receive no response from our contacts or sellers do not agree to re-list their items without using these registered marks.
We remain active in carrying out our policy against the placement of Burning Man images with most stock photo agencies. (These agencies promote use of such pictures for commercial purposes without obtaining prior permission.) Burning Man's busy trademark enforcement volunteer pursued 15 agencies that had photos listed without permission. In all but one such case, the images were removed after contact. The last case, with Corbis Images, was resolved via negotiations to allow a single, high-profile channel through which photographers can offer their photos as stock images, with provisions. Burning Man's legal volunteer and lawyers negotiated a case-by-case review of any requested use, and a specific prohibition against non-editorial use of any imagery.
Cases like these ensure that we rarely endure a dull moment in the Burning Man legal world. In 2004, we pursued contact with one commercial groupware website offering free Burning Man tickets as an incentive to register for their services. We were regularly alerted to variously styled attempts to throw "Burning Man" or "Black Rock City" parties, which attempted to use these marks without permission. Some used photos from the event on their flyers. (One included an unidentified topless female participant.). Except for our active monitoring of eBay for violations of our marks, we learn of these abuses through reports from concerned participants. Because we must enforce ownership of our marks consistently in order to protect them from truly egregious violations, each instance of use requires some form of interaction on the part of the Legal team. Happily, though, most cases are resolved amicably with a simple phone call or email interaction.
Observation of the activity around these issues has revealed a clear need to communicate even more information about our trademarks and our use policies, in order to proactively ensure the widest possible understanding of these issues, and to reduce the number of unwitting violations of our marks or image use policies. To that end, we are working on a web page outlining our policies for all who seek such information, a task we intend to complete early in 2005. Other plans include an open forum event hosted at our San Francisco administrative offices to discuss this topic with a group of interested participants. Other departments have reported success using this method to foster participant dialog and gather input about departmental policies. Efforts like the web page and person-to-person interaction around trademark/image use issues should help to identify existing misconceptions and share new perspectives. Most importantly, we hope to further edify the many good-hearted participants who have kept a watchful eye out for these violations. By providing as much context as possible, we intend to prevent them from happening in the first place.
Meanwhile, the Legal team continues more forward-looking efforts. We process distribution agreements for completed Burning Man documentaries, books, and similar projects, each reviewed by the Media department and the Board, on a rolling basis throughout the year. Agreements to manage the Burning Man "Film Festival in a Box" were created in 2004, and they are currently being executed to finalize this considerable project. It will then be made available to the community via the members of our Regional Network. Burning Man is also on top of developments in issues of intellectual property, like the "Creative Commons" license and the need to maintain a clear understanding of current music licensing laws as they pertain to Black Rock City.
Civil Rights of Our Participants
The Burning Man Project walks a very fine line between conflicting priorities of advocating for the civil rights of the citizens of Black Rock City and fostering a positive working relationship with the numerous law enforcement agencies that make the event possible. In 2004, some of our attorneys rewrote sections of the Survival Guide to give participants a solid understanding of their rights if arrested or searched in Black Rock City, while also deemphasizing placement of said information.
Freedom of Speech and Assembly
Several volunteer attorneys conducted research about the constitutional implications of an ordinance proposed by Pershing County, Nevada, that would require Burning Man to secure a local permit in addition to our annual federal permit to hold the event on federal land. The first version of the proposed ordinance contained numerous violations of the First Amendment. For example, the ordinance would have given the Pershing County commissioners the unchecked right to deny a permit to Burning Man without giving a reason. Burning Man successfully lobbied against this version of the ordinance. However, despite efforts to prevent other constitutional violations, the county passed a revised version of the ordinance, effective in January 2005. Burning Man is currently working with local officials to resolve the situation so an unlawful permit does not put the event out of business. (See the Government Relations report for more information.) If negotiations fail, then Burning Man will consider taking legal action.
The Legal team continuously strives to make Burning Man a better organization by staying on top of many relevant legal issues. During 2004, our legal eagles helped us look at the future of such matters as labor issues and compliance, privacy policies on our web site, and a variety of other legal issues.
History advises that the Burning Man event, the organization that supports it, and the members of its extant and emerging year-round communities will continue to face a wide array of legal issues. Burning Man is fortunate to number among its participants a handful of fantastic advisors who aid in navigating this complicated realm.
Andie Grace & Ray Allen