BREAKING: Shameless Marketers are Shameless

Image by GonZoville.com (Creative Commons)
Image by GonZoville.com (Creative Commons)

While we were on playa this year, a certain restaurant chain decided to launch an advertisement clearly designed to go viral specifically by leveraging the creative efforts of Black Rock City’s citizens — in order to hawk sandwich-shaped products.

As creative and funny as it was (we had a good laugh, we’ll admit), clever unfortunately doesn’t trump our commitment to protecting our community from commercial exploitation. We’ve been fielding anguished calls and emails from participants and horrified artists whose creations were used in the video without permission, a number of whom who have issued take-down requests of their own accord. We can laugh at ourselves. But we’re not laughing when a corporation exploits the artwork of others under the guise of poking fun at our event.

The shameless flouting of our Decommodification Principle to hawk sandwich coupons is equally unfortunate (and unnecessary to the purported “parody”). The Burning Man name, and the designs of the Man and Black Rock City, are core affinity symbols of our culture that we protect precisely so they won’t be used in ad campaigns. So as we always do in these situations, we sent a letter to the company to explain Decommodification and ask that they remove the Man and our other intellectual property from their advertising. We hope they’ll quickly comply, as most companies do when they realize how antithetical this sort of commercialism is to our culture. (We’re dismayed they haven’t taken any action yet — but of course they’re trying to collect every last page view.)

Thank you to those who brought this to our attention. Given the increasing number of people (and we use that term generously) who can’t resist the temptation to exploit our growing community by using symbols and imagery of the event to promote their products and services, we appreciate when you help us find them. If you encounter another instance that doesn’t smell quite right, let us know by emailing ip@burningman.org.

So while we appreciate the creativity, we sure do wish it wasn’t attached to a commercial product.

About the author: Burning Man

Burning Man

The official voice of the Burning Man organization, managed by Burning Man's Communications Team.

53 Comments on “BREAKING: Shameless Marketers are Shameless

  • Anonymous says:

    “When a corporation exploits the artwork of others…” Kind of like how burning man absorbs the work of thousands of artists each year, and reflects them back to the world sans any reference to the actual artist? How about creating a culture of crediting artists for their work (that means crediting artists, as well as the photographers who capture their work).

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    • Will Chase says:

      While we haven’t been as rigorous as we should have in the past (it was a heady time), we now take pains to credit art installations, artists and photographers wherever it’s possible and reasonable to do so — you’ll note every image on our website is fully credited. It’s part of our editorial policy for the very reason you state.

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    • DB says:

      Just one opinion: As an artist, I don’t always need credit. I create solely for the joy of creating. Sometimes even destroying that creation. Do you see my position?

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      • DB says:

        I don’t like it when someone else gets paid for using my work though, and without permission (jokingly or otherwise). Someone got paid for making that ad. Probably a whole lot of money.

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      • The Head of Bob says:

        For the below comment…

        The BORG gets paid for OUR work EVERY YEAR.
        I don’t like that they use my work to line their pockets.
        Basically, the BORG is Quiznos. :)

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      • Lightman says:

        Head Of Bob. BM can only use your artwork if you install it at the festival. If you’re that concerned about it, don’t put up your art!

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      • Duckie says:

        They aren’t doing it without permission or forcing artists to install them at the event, that’s kind of a dumb comment…

        Also did you forget that a good number of the art installations are built with the help of art grants issued by BM?

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  • Ulan says:

    I feel bad for Charlie! Why would they do this to such a cool mutant vehicle and party crew? Charlie’s never done anything but brought joy and love to people. They use all the efforts of Charlie and the embrace folks to sell sandwiches!?!

    What are they thinking? I really hope Quiznos gets sued!! Ugh!

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    • dda says:

      Don’t feel bad for charlie, he probably made a lot of money being a costar in the quiznos ad.

      If you look at the photos on camp charlie’s facebook page, they have a version of the car without candy mountain, it looks like they bring it to non-BM festivals….and it’s the exact same one that’s in the quiznos ad.

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      • Charlie says:

        Charlie was already a rip off of another person’s work..That cartoonist could Sue more effectively than Burnin Man if they didn’t clear it. Charlie is a dirty corn..

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    • Kiki Kaboodle says:

      Maybe BM will now have a reason to stop that lousy looking rig from attending the event like they did with the Douchetronauts.

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  • Scott says:

    Will – do you have a *legal* argument to make hear?

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  • Great post. The Quizno’s thing was so wack. Especially because their sandwiches are disgusting.

    BTW, I just wrote this piece about Burning Man in response to all the people who are taking such great pains to say that it is “over” in some meaningful way. Not sure how to submit things to this blog, but would lover for you all to post it if you like it. Thanks –
    Daniel Souweine

    http://www.huffingtonpost.com/daniel-souweine/burning-man-critiques-mis_b_8130462.html

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  • no shame says:

    About marketing: the art filed under ‘honoraria’ is often made by the same artists each year. How ‘marketing’ is that?

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  • Gutton says:

    Streisand Effect is 3. 2. 1. How many people have this commercial saved on their computers? It’s never going away even if Quiznos takes it down. It was obviously written by a burner, just deal with it. You got spanked, BMorg, as well as your so-called counter-culture.

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    • grumbles says:

      Spanked? How? Please do explain.

      What I saw was a slightly funny, way-overly-meta ad that does appear to use copyrighted images without permission.

      I saw no spanking, and didn’t see any attempt at one. I saw the same sort of jokes people make about burners all the time, slightly watered down with explanations, I’m guessing so it makes more sense to non-burners.

      FTR, I wish the powers that be didn’t abuse IP. I get the goal, I like the goal, I hate the method. That there probably isn’t a better way doesn’t really make that better. But they aren’t asking me, so there you are.

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    • Peace says:

      Sometimes the bad-guys win a battle. This video exists forever and Quiznos got what they wanted out of it. It was an evil plan that worked. About the only thing they could do now would be to sue Quiznos to recover money for the use of the trademark, which would establish a precedent where BM is selling the use of their trademark, which is against our principles. Asking Quiznos to remove the IP from the video keeps the precedent in place that BM does not sell its trademark. Well played Quiznos. Intelligent response org.

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  • Amelia says:

    What the hell does a sandwich company have to do with Burning Man?
    They brought nothing and don’t care about our event or our culture. They shamlessly exploit our community for the sake of selling their product. Disgusting.

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  • Some Seeing Eye says:

    We expect the Burning Man organization to use IP to keep us from being exploited by marketers. Excellent on placing more focus on crediting on-playa art to the creators!

    There are plenty of marketing people that participate in the community. We need to continually remind them that exploiting the community is unacceptable.

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  • billy sharpstick says:

    I thought it was pretty funny. it’s not accurate, but was obviously(to me) written by burners.
    the org is obligated to defend its intellectual property. i fully expected (and agreed) that as soon as i saw it, but quiznos is getting a shitload of free publicity out of it. so are we, although we don’t really need it.
    Quiznos will comply, pull all the videos, but the damage was done, the video is out there and the quiznos marketing genius who thought it up will get a nice bonus. BMORG has met their legal and moral obligation to protect their(and the artists) IP. We all dance a happy little dance and life goes on. I enjoy the comedy and open a bottle of Krug to toast them all!
    (I laughed my ass off on early burn night, too!)

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    • grumbles says:

      You are thinking of trademarks with the whole obligation to defend thing. Copyrights do not act that way: if I ignore someone copying my book or photos this time, I can still go after someone else doing the same that time.

      Don’t confuse trademark and copyright (or patent, or trade secret) law with each other. They are different, with very different legal rules.

      Like: did you know that trademark (the one you have to defend) is nominally limited to particular markets (classes)? Someone could make a case for Burning Man Soda, and in theory that’s perfectly fine. In practice, I suspect you’d be in for a hell of a fight, like someone making a Coke brand car, but the same mark in a different class is permitted.

      Sorry for the digression, I just get tired of people spreading bad information. I’m no lawyer, this ain’t advice.

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  • Chromie Pants says:

    Just imagine what would happen if Bud Light created a video that was “a parody” of the Super Bowl where they showed two NFL teams (and the Dallas Cowboy Cheerleaders, and also Madonna performing the Half-Time Show) playing in some famous stadium, and they used the name “Super Bowl”, all without any licensing or permission.

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  • SW says:

    Good news, Quizno’s has taken a stand against the tyranny that is Intellectual Property, and is inviting anyone and everyone to open their own Quizno’s shop, with royalty free use of their brand and logo’s.

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  • GladDude says:

    The Quiznos ad was awesome, and Burning Man’s attempts to have it censored are baseless at best and whiny at worst. Your attendees, and moreso your organizers, are a bunch of pampered, privileged individuals who — rather than take a satirical joke for what it is — got all defensive and offended, choosing to find legal recourse.

    You want to have a desert party? Fine. It’s a free country. You want to dictate how others present you and use your party for their own benefit? Nope, sorry. You’re being spoiled, childish jerks.

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  • azodicarbonamide says:

    Maybe we do what we do best – next year an overly toasted yoga mat art car sandwich. I really don’t know how they stay in business though. Maybe this spoof ad will get enough people to go try a sandwich. Then they’ll know the truth.

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  • Claymore says:

    I actually thought it was using Quiznos as an example of how Burning Man is anti-commodification, but still connected to commercialization. I found it funny and ok as a parody until I found out it was Quiznos that produced it.

    I support the org fighting for itself and the artists. Not really because of the 10 principles, but because if someone is using images, logos or art to sell their product, they should have gotten permission and paid for it like they would have done for any other trademarked property or distinguishable event or art.

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  • The Head of Bob says:

    Dear BORG,
    YOU don’t own Burningman.
    YOU don’t own the Playa.
    YOU don’t own the rando shaman-hippies, or tech douches, OR THE ART WE MAKE.
    YOU supply porto-potties and a hyper-annoying ticketing system.

    Sandwiches aren’t exploiting “our community”, however, you as the BORG are. You think you own our art, our people, our performance, our spirit. You use US to “spread the Burningman Gospel”.
    The fact that you threatened legal action for what is actually a fantastic parody of our culture ,tells me that YOU the BORG, have lost their way.

    Be honest, you aren’t protecting “our culture”… you are protecting your future income.

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    • Dimitry says:

      You are right, they don’t own it, but as the governing body of the event they have taken it upon themselves to protect it. Individual artists or other participants may not have the financial / legal might to stop this kind of exploitation but the BORG as you call them do and it is their duty to do so. That’s kind of what a government is for, to act on the behalf of a community in protecting its interests. And what is wrong with protecting their future income? That’s in the community’s interests too. Burning Man is a work of art in itself and those who make it their career to organize it should be well compensated because they should have as many motivators as possible to continue building and improving the event. Should a great actor not be well compensated? How about an entrepreneur that comes up with a great business idea?

      I have only been to BM twice and after being completely blown away by the experience last year decided to organize a theme camp this year. I worked my ass off and spent thousands of dollars to make my contribution. While I don’t have any legal rights to Burning Man, I helped build it, and I feel a sense of ownership for it. While my specific work was not in the Quizno’s ad I feel that something I helped build was exploited for commercial purposes without any permission or benefit to the community and that is simply theft of my and tens of thousands of other people’s work. If BMORG were to not protect our community from exploitation I would feel let down and that my work was not being valued.

      It could have been a fantastic parody, instead it is a sad reminder of how shameless and dishonest people can be to each other in the default world. Talk about a decompression bummer!

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    • Nomad says:

      Amen, Bob. You nailed it.

      For the record, the “commercial” part of the 2:45 video short was only 10 seconds if you include everything having to do with sandwiches. Without those 10 seconds, it is actually better. This is what the remaining 2:35 looks like:

      If you want to boycott because of the coupon at the end, be prepared to boycott BN Rail for their sponsoring the PBS News Hour. (I presume all know that rail has a lower carbon footprint, per ton-mile, than trucks.)

      I, for one, will patronize both, and next chance I get will order a “Burning Man” sub: turkey with extra bacon, toasted of course.

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  • Lisa Motel says:

    The sandwich company and their ad agency know all about licensing and permission. Asking them to cease and desist is not nearly enough. They knowingly and blatantly took advantage with intent for profit… I’d like to see lawful recourse in the shape of big, BIG dollars (the millions they would have needed to be granted the proper licensing) that will go toward art/art car grants for 2016. They stole from our public and need more than a polite request to take down their parody.

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  • Jonathan Corbett says:

    I’m really exhausted with reading shaky legal claims in The Jackrabbit Speaks. Burning Man’s commitment to “protecting our community from commercial exploitation” does not trump the long-standing principle of fair use. Your statement in the newsletter that using BM marks “for commercial gain isn’t” acceptable neglects the reality that fair use is a multi-faceted privilege, and the fact that something is used for commercial gain is not conclusive as to whether or not the use was fair. For example, McDonalds could make a commercial that shows a Burger King location and says, “BK sucks, the arches are better,” and despite using the BK name and imagery in the ad, would not be liable to BK for infringement.

    The more important factor in determining IP rights were violated is whether or not the ad created consumer confusion, i.e., it gave the idea that BM approved of the ad. It is clear that this ad is a parody and no one would have thought that BM was behind it.

    You’re therefore now wasting my time in having to school you on IP law, and if you actually take action against Quiznos, you’ll be wasting all of our money. Stop and go focus on more important things.

    Fuck your day,

    –Jon “Bounce” Corbett

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    • Bill Ralston says:

      Gee, Jon, BMORG didn’t ask you to waste your time to “school them on IP law.” And a waste of time it was: you got it wrong. Perhaps you should leave schooling people on IP law to those who know what they are talking about. It seems you are confusing copyright with trademark. Fair Use of *trademarks* is extremely limited as compared to copyright. Moreover, your example is “nominative use” and is easily distinguished from what Quiznos did. If you feel so strongly, you should offer to defend Quiznos pro bono – oh wait, that would require you to actually be a licensed attorney.

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  • Thanks for posting about this. I think it is significant for a lot of reasons. I just posted a video about it on the Burning Blog: http://blog.burningman.com/2015/09/tenprinciples/quiznogate/

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  • J says:

    Good on you, BMORG.

    More of this shit happens every year – it’s starting to look more and more like a dusty Coachella.

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  • HoneyBee says:

    I hope the org sues the pants off of them. Personally, I am boycotting.

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  • Sippy Cup says:

    “……. clever unfortunately doesn’t trump our commitment to protecting our community from commercial exploitation.” How about all those plug-and-play camps? Our community is being exploited by for-profit commercial vacation enterprises and BMOrg supports this commercial exploitation by granting theme camp placement, tickets and garnering fees for commercial flights into the playa airport. All of those people who create the airport and tend it are VOLUNTEERS and yet these companies are PROFITING from Burning Man and taking up prime real estate and tickets for their ‘sherpas’ who wait hand-and foot on their customers. They are not burners, they are customers and employees on an all-inclusive vacation package. It’s not Quiznos, but it certainly goes against the decommodification principle. Talk about shameless flouting of your own principle, BMOrg.

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    • Will Chase says:

      Well, you’ll be happy to know that we are doing something about turnkey (aka plug and play) camps that erode our culture. We already did, in fact. Here’s our policy for turnkey camps: http://blog.burningman.com/2015/07/tenprinciples/heres-what-burning-man-is-doing-to-end-turnkey-culture/ and how we handle outright concierge services: http://blog.burningman.com/2015/05/news/kicking-concierge-caboose-in-black-rock-city/

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      • Nomad says:

        Will, how did all that work out? Did landings at the BRC airport fall off? How about the traffic from the airport to the (non-existent) CCamps?

        I mean really, how do you fly in without having someone drive all your stuff there? You can’t spend a week in BRC with just a suitcase or two without some help.

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      • Sippy Cup says:

        Thank you for the response and links, Will. I read some of those before the burn this year and was hopeful that the issue was being addressed in action as well as in words. It seems to be a work in progress that I hope will continue. My own experience was in talking with a long-time airport volunteer who comes in several times before the event to survey and create the airport. His own words to me were that it used to be some burners with small planes would fly in and many would also gift rides to fellow burners. Now there are many, many commercial flights with entitled passengers being overly upset if there is a wait to get on-playa and *gasp* they are made to wait in the sun because the shelter is too small to provide enough shade for all of them.

        I did a little volunteering so was permitted EA on Saturday and almost camped right next to a PnP camp. Luckily some friends were already set up and warned that their generators were running 24-7 while the “sherpas” set up the camp. We moved further down the road and, sure enough, we were told by less fortunate campers that those generators were running the entire burn to provide A/C for the individual little white tents which continually pumped A/C into them day and night. We also noted heavy equipment on that Saturday and Sunday used to set up the camp and I can only assume that it belonged to BM. I don’t know how that works, whether a camp pays BM or if it’s a matter of who you know to get use of it.

        The camp had two gorgeous art cars with seating for about six, so needless to say, no one outside their camp were gifted rides that I am aware of. The driver of one of the cars told us he was to be paid $7000 by the owner of the camp to build the care and drive it around for the week. (He noted he had not been paid yet.) On the last Monday he commented that now was “his time” to do what he wanted.
        So, the issue remains of the camps getting placement and tickets for workers who are being paid to be at BM to build and support these PnP camps. There is also the even larger issue of companies profiting from providing these all-inclusive vacation packages to their customers and fees being collected by BLM and Burning Man for airport privileges and who knows what else.

        So, yes, thank you for listening to the not-so-privileged Burner about our concerns for upholding the 10 Principles. We love our neighborhood and are accustomed to feeling welcomed by all camps around us but this corner of PnP was a bad fit for us. As a 10-year burner, I can certainly appreciate that things change and this still was one of my best Burns ever, but I hope you will continue to keep these profiteers from stomping on our beautiful culture and principles. Thank you.

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  • Mark johnson says:

    Whoever thought we’d use the term “intellectual property “and burningman in the same sentence?

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  • Dr. Baron von Realz esq. says:

    The video is funny as hell.. An unnamed sandwich chain has exposed the soft underbelly of burning man and used our own tools of humor and sharp wit against us… Well played unnamed sandwich chain … well played. Now we should use the corporate tools against them unleash the lawyers.

    Peace
    Dr. Baron von Realz esq.

    )'(
    Less sherpa’s more minions
    – Dr. Baron von Realz esq.

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  • Kiki Kaboodle says:

    How anyone would want to defend the actions of multinational corporate food and beverage chains is beyond me? Call Burning Man a sell out all you like, but look at who they are; a small group of workers who put in long hours to make sure people have a nice time at an event that is not overwhelmed by corporate advertising. They are not perfect and they don’t always get it right, but I’d sooner spend my time helping Burning Man than sit in a sandwich shop.

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  • Spock the Cow says:

    I’m a 9-year burner who takes the 10 Principles seriously. So I definitely agree with BMOrg’s feeling that the Quiznos viral marketing video is distasteful because it violates our decommodification principle. I also agree that the video is hilarious. But I don’t believe BMOrg would win an action for takedown.

    The two possible actions BMOrg can bring are copyright infringement and trademark infringement. The trademark infringement claim would, I think, be decided on the basis of whether there is likelihood of consumer confusion about BMOrg selling Quiznos sandwiches. For burners, I think there is no likelihood of such confusion. I suppose someone who has never attended Burning Man might possibly be confused…but that seems like a stretch.

    The copyright infringement question would probably come down to a fair use argument by Quiznos claiming their work is parody. Parody is protected because it is transformative; the legal definition of ‘transformative’ is dicey, but basically it means the work is being used in a different manner. Commentary or analysis of a culture, in this case by poking fun at aspects of it, is certainly a different use of the images and culture than is intended. There’s a great deal of legal precedent allowing parody in this manner.

    Each year I see a few art pieces, either registered on playa or within camps, that are themselves transformative works that parody copyrighted property. The awesome Barbie Death Camp is an example. What’s the difference (from a copyright point of view) between what Barbie Death Camp is doing and what Quiznos did? I think most of us would say the difference is that Barbie Death Camp is not trying to financially profit from its use of Barbie property, while Quiznos was trying to financially benefit from its use of Burning Man culture. Okay, so let’s look at South Park’s Burning Man episode. While the South Park episode is a creative work of parody, its distribution is absolutely a for-profit enterprise. The viewer either pays to watch the episode or it’s broadcast ‘free’ but used to get viewers to watch advertisements. How is this different from the Quiznos commercial?

    I’m not a lawyer, but my bet is that Quiznos is on solid legal ground here.

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  • Jesus says:

    Firstly, I’d like to know (where I can find) more detail on the “horrified artists … who have issued take-down requests” – which entities received take-downs, and how did they respond. Google/YouTube, Quizno’s ISP, etc.

    Secondly, Spock needs to be more informed about Trademark Law. There does not need to be ANY “likelihood of consumer confusion” for a trademark claim to stand. See https://en.wikipedia.org/wiki/Trademark_dilution, the Trademark Dilution Revision Act of 2006, etc. Burning Man is a “famous trademark” and also see https://www.youtube.com/watch?v=C59bkKp8r5E (gist: parody defense isn’t much help when the purpose is commercial profit, rather than art.) What was done here is that artists IP rights in creative works were appropriated and used to make money for stockholders. “Federal law allows the owner of a `famous mark’ to enjoin a person from using `a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark.”

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  • Jesus says:

    P.S. Knowing how corrupt our courts are, I half expect a case about this to be taken as an opportunity to rule in favor of the deep pocket, on a novel basis. While normal people would see the primary purpose of South Park’s Burning Man episode to be entertainment and political commentary but the primary purpose of the sandwich ad to be advertising, I half expect the courts to rule that commercial adverts deserve the frea speach protections that works of entertainment and political commentary deserve. In line with the corporatist decision of Citizens United.

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  • Jesus says:

    Hmph. My first comment seems to have not passed moderation. Lame. It had a link to Wikipedia in it, IIRC. My PS posted immediately, I think. :-(

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