The Burning Man trademark controversy

Original uploaded by Sterling Ely and shared under a Creative Commons License.

Scott Beale has been keeping me up to date on the Burning Man trademark controversy and today Eugene Kim pinged me about the story hitting the Chron.

What’s so interesting and didactic about this controversy is that it embodies, on a grand scale, the kind of micro-controversies that open source communities have faced for a long time around intellectual property and trademark matters.

On the one hand, you have the folks from Black Rock City, LLC, the ones who put on the event, fearing corruption and abuse by commercial interests:

…about the idea raised in the lawsuit of putting the Burning Man name and image in the public domain. While the concept is interesting, the reality is that we’ve been fighting attempts by corporations to exploit the Burning Man name almost since the first day we set foot on the playa. Making Burning Man freely available to individuals who would only use it to make money would go against everything all of us have worked for over the years. We will not let that happen.

On the other side, you’ve got folks, like John Law who filed the lawsuit, willing to embrace the chaos, as we often say, and let the market and — more importantly — the community — decide the brand’s fate (given certain conditions):

Burning Man belongs to everyone.

Burning Man is the sum of the efforts of the tens of thousands of people who have contributed to making Burning Man what it is.

The name Burning Man and all attendant trademarks, logos and trade dress do not belong to Larry Harvey alone or to Black Rock City LLC.

If they don’t belong to anyone, they belong to the public domain. If they are in the public domain, the event can still go on and the trademarks, logos and trade dress can still be used. But the event organizers don’t own those things and each and every one of the event participants are free to use these things as they want without permission or interference from the event organizers. There’s nothing to stop the party from being as big and wild as ever.

Then, of course, there are the corporate and commercial interests, who see a huge opportunity to capitalize on the value, reputation and attention-getting that the brand has generated over the years, who, according to reporter Steven T. Jones, envision MTV coverage, a burner clothing line from the Gap, Girls Gone Wild at Burning Man, billboards with Hummers driving past the Man, and other co-optations by corporations looking for a little countercultural cachet.

It’s unfortunate that when money starts changing hands, the original ethos and spirit of creation inevitably becomes undermined and damaged. I’ve seen this happen many times over — and when it doesn’t, it’s either because the commercial potential (the true measure of modern-day success in most circles) dissipates, or the community refuses to go down without a fight and relinquish dominion over the destiny of the project — of their creation.

But protecting the integrity of a community-built brand is a massive challenge for any collective — especially when protection isn’t exactly top of mind for most members of a group (ignoring the bystander effect). This kind of protective behavior is also, in many ways, antithetical to the type of free and open ethos that was so originally attractive. Thus, when things migrate from an ethos-driven commons to a commerce-driven economy, many of the original drivers for participation are subsumed by “maintenance- and protection-mode activities”.

This is something that Mozilla, Creative Commons, BarCamp, Microformats</a, OpenID, Tribe and others have and will continue to deal with. Thus given my experiences, I’ve been trying to express ideas for an alternative to trademark in the Community Mark concept, to varying degrees of success.

With this Burning Man situation starkly highlighting how nasty trademark disputes can get (and it’s only going to get worse for decentralized communities in the future, as the burners tend to be early pioneers of digital culture).

So, the question that remains to be considered here is what kind of moral code could be applied in this situation to mitigate the harmfulness of this dispute? — and for the future, what can similar community groups do to preserve their culture, their idealism and their connection with positivity and creativity when they begin to experience internal or external commercial interest?

It’s long been my contention that, if the BarCamp mark should ever be co-opted (in that the community at large would lose effective dominion over the brand’s destiny — and we’ve had our brushes with disaster as well as ongoing and continuing controversies), that the brand and name should effectively be destroyed.

It is my opinion, perhaps naively so, that the health of the BarCamp community and resultant cultural productions are far more valuable and useful as contributions to the advancement of civilization than the name or the brand. And, the brand is really only as valuable as the community is healthy, so in my thinking, the nature and organic decay that might occur over time to the brand itself is to be embraced, accepted and allowed to run its course, even if it means that the original mark be abandoned or annihilated in the interest of preserving the sinews of the collective.

I think that John Law’s proposal to put the Burning Man mark into the public domain is an interesting one, and I would hope a genuine one. On the other hand, however, he contends that if the other two owners of the mark are going to continue raking in $8M a year running the business, he deserves his piece of the pie. Such is the insidious damnation of intellectual property:

If it’s a real fucking movement, they can give up control of the name, Law told the Guardian in the first interview he has given about Burning Man in years. If it’s going to be a movement, great. Or if it’s going to be a business, then it can be a business. But I own a part of that.

Now, I have two proposals of my own to make in this case, and they probably will not come as a surprise.

The first is a response to centralization and crystallization in and of communities — in other words, a way to address the stabilization, ordering or staleness of a community leading to its isolation, vulnerability and/or co-optation. As Ori Brafman has said, the best remedy and protection is disintegration, shattering the community into its original component parts, and the sending of those pieces to the wind to reformulate elsewhere, in a wholly new and unfamiliar form. This is actually the process of conflagration that signifies the ending of Burning Man every year and should be a salient reminder of the temporal nature of these constructs; indeed such renewal is necessary for the long term survival of the global organism.

The second proposal is more specific. I would like to append an escape clause to the current thinking on the Community Mark concept. Whereas the lifetime of a Community Mark shall be “as long as the community is willing to protect and uphold the integrity of the mark, and no longer”, I think it is necessary to also stipulate what happens to the brand after a disintegration event… and, as a sort of “living will” for the community to protect against the corrupting influences of consolidation-in-the-sole-interest-of-commerce… There may be two outcomes — one, that a community mark may end up unowned and in the public domain, whereby no single entity may lay claim to it; and the second: a kind of intellectual property black hole where the mark is Robert Paulsened — that is, completely erased from memory, never to be spoken of or invoked again, at least in the context of the original meaning. Instead, and in its void, a new entity may be created, but totally new, with no connection with the former, such that the restorative acts of creation can save the community from itself and from the destructive and minimizing effects that possession, consolidation and megalomania leads to.

So, I do hope and expect that the community of Burning Man can pull itself through this and beyond the stagnating grasp of commerce for the sake of commerce, but only time will tell. I imagine that the community is resilient enough to live through this and at the same time, hope that the rest of us are able to learn from the pain and anger that that community is now experiencing.