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The Burningman Organization claims that they hold copyright over all photos taken within their event.
Is that legally enforceable?
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SF Bay Area
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Re: Burningman Photos Copyright Questions
Thu, October 4, 2007 - 4:41 PM -
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Re: Burningman Photos Copyright Questions
Thu, October 4, 2007 - 4:52 PM(which covers only video (including digital cameras with video capture))
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Re: Burningman Photos Copyright Questions
Thu, October 4, 2007 - 5:05 PMWeazie:
No. No legal agreements were signed.
Fair use is always subjective, but I believe that the photos would qualify as fair use:
* the artistry of the photos adds something
* they only represent a tiny fraction of the Burningman festival
* the photos cause no negative financial impact on Burningman
There are some restrictions on the back of the ticket however. To what extent would those restrictions hold sway over fair use for derivative works? -
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Re: Burningman Photos Copyright Questions
Thu, October 4, 2007 - 5:23 PMFirst things first.
What does the back of the ticket (aka your contract with burningman) actually say?
Now, assuming the participant agreed to exchange entry for copyright (which can be a valid contract), only then does the fair-use doctrine come into play:
en.wikipedia.org/wiki/Fair_use -
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Re: Burningman Photos Copyright Questions
Thu, October 4, 2007 - 5:37 PMFrom the back of the ticket.
"You appoint Burning Man as your representative to protect your intellectual property or privacy rights, recognizing that Burning Man has no obligation to take action. ... Use other than personal use of images from Burning Man, or of drawing or represtantions of the Burning Man sculpture on a book cover or in any advertisement, is prohibited without prior written consent of Burning Man." -
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Re: Burningman Photos Copyright Questions
Thu, October 4, 2007 - 11:51 PMTo answer your original question: Yes, it is possible for you contract away your copyright. It appears that's what the back of the ticket is doing, but I'd want to see the whole thing, in its entirety (and without any omissions).
The next step would be a fair-use analysis, which is always case-by-case. To me, the biggest issue would be the nature and purpose of the transformative work. How transformative is it? What is the transformative work's purpose (commerical, criticism/education, etc.)?
And then there's the real-world questions. How likely is that burningman (and its lawyers) will run across the work? When burningman's lawyers send you a nasty letter, how willing are you to fight back (read: how much money do you want to spend defending yourself)? Is there a reason (other than General Principles) for not just trying to obtain written consent? -
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Re: Burningman Photos Copyright Questions
Fri, October 5, 2007 - 11:04 PMThanks for your help here.
"YOU VOLUNTARILY ASSUME THE RISK OF SERIOUS INJURY OR DEATH BY ATTENDING AND RELEASE BURNING MAN FROM ANY CLAIM ARISING FROM THIS RISK. You must bring enough food, water, shelter and first aid to survive one week in a harsh desert environment. Commercial vending is prohibited as are firearms, fireworks, rockets and other explosives. You agree to read and abide by ALL rules in the Survival Guide and follow federal, state and local laws. This is a LEAVE NOT TRACE, pack it in, pack it OUT event. You are asked to contribute at least 2 hours of playa clean up in addition to your own camp. Art cars, art installations, theme camps and performances are not owned or operated by Burning Man and you assume all risk of injury arising from their operation. You appoint Burning Man as your representative to protect your intellectual property or privacy rights, recognizing that Burning Man has no obligation to take action. All vehicles including trucks, trailers and RVs entering and exiting Burning Man are subject to search by Gate staff. Tickets are nonrefundable even if the event is terminate early or canceled due to harsh weather, acts of nature, governmental regulations or conditions beyond Burning Man's control. This ticket is a revocable license that may be revoked by Burning Man for any reason. Use other than personal use of images from Burning Man, or of drawing or represtantions of the Burning Man sculpture on a book cover or in any advertisement, is prohibited without prior written consent of Burning Man. Burning man is not liable for acts of God, or actions taken by government agencies. Children under 18 years of age can attend the event only accompanied by a parent or guardian, and any person bringing a child to the event agrees for the child to the contractual terms on this ticket. YOUR USE OF THIS TICKET CONFIRMS YOUR AGREEMENT TO THESE TERMS."
> How likely is that burningman (and its lawyers) will run across the work?
Burningman has seen the photos, and asked for them to be removed. The conversation back and forth has been very polite so far. We haven't yet agreed to or rejected their request to remove the photos. But threats of a lawsuit will obviously be next step if we don't agree to remove the photos, and they decide to increase the pressure.
> Is there a reason (other than General Principles) for not just trying to obtain written consent?
After receiving the first email, we asked for the process to apply for permission to use the images. We were told that there is no process - we simply are not allowed to use the photos.
BMORG reads through tribe.net, and it seems like a bad idea to share legal strategy with a potential plantiff. I'll send some additional thoughts in a private message. -
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Re: Burningman Photos Copyright Questions
Sat, October 6, 2007 - 11:31 AMI figured what usage you're talking about.
Assuming that burningman owns the copyright, your usage isn't fair. So I'd suggest stop even thinking about that.
Now the ticket contract, as my contracts professor would say, "Not a model of clarity." Whether you contractually gave up your copyright is open to debate. Which may have to be settled in court.
If burningman goes that route, they will likely go after you, personally, and the LLC. And the LLC *must* have a lawyer to be represented in court. (While you can go pro per, corporations cannot.)
So if using your photos is so important to you (and the LLC...do the LLC's officers think the usage is worth the risk), I'd suggest lining up some representation for the LLC. -
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Re: Burningman Photos Copyright Questions
Sat, October 6, 2007 - 1:53 PMWeazie:
> Assuming that burningman owns the copyright, your usage isn't fair.
The copyright of what exactly?
The have a trademark on the name, but that isn't the issue (yet).
I don't believe they have any copyrights on the idea of the festival. And they don't claim copyright over various pieces of artwork at Burningman - they just attempt that indirectly through appointing themselves as representatives designated to protect attendee's intellectual property.
> And the LLC *must* have a lawyer to be represented in court. (While you can go pro per, corporations cannot.)
Well that sucks.
But if they're throwing multiple lawsuits at an individual or group which cannot afford a lawyer, that seems to certainly strengthen one of the arguments we described in private.
> So if using your photos is so important to you (and the LLC...do the LLC's officers think the usage is worth the risk)
Ensuring the spirit of Burningman remains with the community rather than the BMORG is important to me. As for the other LLC officers, we're discussing it.
I guess that our best approach if it comes down to it would be to try to outdo their PR. An image of the massive BMORG corporate machine steamrolling a tiny festival, rather than negotiating with it, might not be the image they want blasted all over the press.
The SF press does seem to love covering any big gossip or lawsuits which involve Burningman. -
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This is the maximum depth. Additional responses will not be threaded.
Re: Burningman Photos Copyright Questions
Mon, October 8, 2007 - 5:18 PM> The copyright of what exactly?
The photos. I presume buringman asked you to take down the photos because (as they argue) you contracted away your copyright for those photos (if they are used in a non-personal use manner, and your use does go beyong personal use).
They can't copyright the concept of a festival. But pictures taken at said festival can be copyrighted. -
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Re: Burningman Photos Copyright Questions
Mon, October 8, 2007 - 6:57 PM
It looks like this will just end in negotiations and not go to court. Their original statements said that they "categorically" don't allow anyone to use photos for promotion. Now, they've backtracked on that a bit and said that for official regionals they will allow photos to be used. So, maybe they'll hold off while we're in the process of making that happen.
If we continue this, it'll just be for interest sake. :-)
> I presume buringman asked you to take down the photos because (as they argue) you contracted away your copyright for those photos
But, that does not seem to be their argument. You hold the copyright, but Burningman serves as your representative to protect that copyright. What exactly does that mean?
Their argument seems based on the line of the ticket which says you cannot use photos without their permission - don't know if that adhesion contract would hold up.... -
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Re: Burningman Photos Copyright Questions
Mon, October 8, 2007 - 9:56 PM[But, that does not seem to be their argument. You hold the copyright, but Burningman serves as your representative to protect that copyright. What exactly does that mean?]
Like I said, their original contract isn't a model of clarity. But the only way they could tell you to not use your own photos is if they in fact owned the copyright.
[Their argument seems based on the line of the ticket which says you cannot use photos without their permission - don't know if that adhesion contract would hold up....]
(To borrow a poker metaphor:) Because BMORG has much deeper pockets than you, it might bet on its losing hand, knowing that you can't cover the ante required for litigation. And if things look bad for them, they can just grant the license, and moot the issue.
But negotiations does sound like the best for everyone. Your project really isn't in direct competition with BMORG; I think that's the best bet in making them see it as a win-win.
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Unsu...
Re: Burningman Photos Copyright Questions
Fri, October 12, 2007 - 9:01 PMI don't see in there where you assign them the rights to your photos.
I don't see any definition of what "personal use" (which is permitted) means.
I don't see any enumeration of what remedies they have against your violation of the agreement.
It is a stupid contract of adhesion, stupid the same way the TOU on Tribe.net is a stupid, illusory contract.
I think both organizations hired the same lawyer. -
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Re: Burningman Photos Copyright Questions
Tue, October 30, 2007 - 2:54 PM"I don't see in there where you assign them the rights to your photos. "
That isn't isn't particularly clear, but there's enough there that the LLC is willing to go to court over (as it has in the past), and it knows it can outspend Adam (and his corporation). (And the LLC appears to be using a variant on a click/shrink-wrap license, where they refer to yet more rules in the guidebook.)
"I don't see any definition of what "personal use" (which is permitted) means."
The usage in question is commerical. And lack of a definition isn't fatal; common usage is usually sufficient.
"I don't see any enumeration of what remedies they have against your violation of the agreement. "
Not needed for a breach of contract claim; you prove damages at trial.
And damges for copyright violations are set by statute.
"It is a stupid contract of adhesion"
It may be a contract of adhesion, but that's hardly a slam dunk; contracts of adhesion are not per se void. -
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Unsu...
Re: Burningman Photos Copyright Questions
Sat, November 10, 2007 - 2:52 PMI wrote: "I don't see in there where you assign them the rights to your photos. "
You replied: "That isn't isn't particularly clear, but there's enough there that the LLC is willing to go to court over ....
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I disagree. If an assignment of one's ownership of intellectual property rights is being made by nothing more than some boilerplate on the back of a ticket, that boilerplate needs to be clear, if not conspicious. And it isn't either. The langauge talks about them protecting your rights, not giving away ownership.
I am astonished that you think that is an enforceable transfer or assignment of ownership.
All it said was that you appoint Burning Man to be your agent to protect your intellectual property rights or privacy rights or some hoohaw like that. That hardly constitutes a transfer of ownership.
And then the bit about commercial use being prohibited? How can they prohibit the use of what they don't own? If the purported assignment of ownership is invalid, as I say it is, then it goes without saying they have no dominion over its use.
As for which party has more money to spend, so what? How does that factor into the interpretation of a contract?
I have whipped ass on some huge corporations that tried to sue little guys for intellectual property theft. With little money, and being a one man show against an army of lawyers, I whipped their ass. Repeatedly.
It helps if there are other lawyers around who will also stand up for the little guy. You can pool research and info that way. -
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Re: Burningman Photos Copyright Questions
Sat, November 10, 2007 - 4:42 PMThanks for the thoughts Anders.
It was also my thoughts that the BMORG is completely in the wrong in this case, and just think they can get away with bullying the little guy.
If it was just up to me, I might take on this fight.
But, it was not an important issue of it's own sake. We didn't need the photos. And it was not my place to sacrifice the potential future of our project, just to make a moralistic stand.
Cheers!
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Unsu...
Re: Burningman Photos Copyright Questions
Sun, November 11, 2007 - 5:15 PMMoralistic stand?
Ha ha.
I don't take on Moralist Stand cases very often anymore. Somehow, it always means I will be working very hard and for free.
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Re: Burningman Photos Copyright Questions
Mon, November 12, 2007 - 3:16 PM[I am astonished that you think that is an enforceable transfer or assignment of ownership]
I am astonished that you think that's what I said.
I said the transfer wasn't clear, but enough for LLC to go to court. Hardly me saying there was an enforcable transfer.
[being made by nothing more than some boilerplate on the back of a ticket]
The LLC will take the position that the transfership notice is conspicious not only on the ticket, but on their website, in the survival guide, and posted at the gate. The ticket is a click-thru/shrink-wrap, not the entire contract.
[If the purported assignment of ownership is invalid]
*IF*. OTOH, if it is valid, the LLC owns the copyright, and this isn't a fair-use exception because the use is commerical.
[As for which party has more money to spend, so what? How does that factor into the interpretation of a contract?]
Paper law versus real-world law. You can argue on the Internet all you want. How you react when the C & D comes to your mailbox is entirely different.
Adam's project has a "complex" relationship with the LLC. Suing the LLC prolly won't help, even if he's right. -
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Unsu...
Re: Burningman Photos Copyright Questions
Sun, November 18, 2007 - 8:16 PM"Paper law versus real-world law. You can argue on the Internet all you want. How you react when the C & D comes to your mailbox is entirely different. "
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I do most of my arguing in court. Is that real law enough for you?
Your idea of a real argument seemed to be to say that the side with the most money was going to win. That is not useful analysis. -
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Re: Burningman Photos Copyright Questions
Mon, November 19, 2007 - 12:07 AMHaving the most money doesn't mean you automatically win, but evaluating who has the money to burn is part of any litigation strategy.
When you pass the California bar, you can represent Adam. Good luck.
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