Welcome to Digital Rights: Debates in the Dust

[Rosalie Fay Barnes is a consultant for the Burning Man Project, facilitating the review of current media documentation and legal policies. She also consults with Black Rock Solar, helping to develop k-12 educational materials around climate change, environmental law, and disaster responses. Rosalie earned a double Masters from the Harvard Graduate School of Education focusing on technology and cognitive development, where she worked extensively with Harvard Law School’s Berkman Center for Internet & Society, a digital rights think tank. To contact her and/or to inquire about blogging for the Digital Rights Series, email cameratales@burningman.com.]

The Media Takes Aim at Larry Harvey, 1998
The Media Takes Aim at Larry Harvey, 1998

As you may have read in the blogosphere, the Burning Man Project has been undergoing a review of legal terms related to media documentation at the event (for media references, see the link list below). And while the goal of this effort is to determine the specific legal language on the ticket and Burning Man’s Terms and Conditions, it’s really about accurately reflecting the culture and community of the Burning Man event.

Should certain on-playa activities (such as the Critical Tits Ride, for instance) be camera-free events? Should photographers be able to make a profit by selling their Burning Man photographs? If so, how much? What framework best facilitates every participant’s right to enjoy “radical self-expression” on playa in this regard? These questions are just the start of the conversation, and it’s certainly true we’ve seen quite a diversity of impassioned opinions being expressed around this highly complex, nuanced issue. (And it’s no wonder: one needn’t extrapolate too far to see how these considerations have resonance in the real world, as the dynamics of digital media are evolving quickly with advancements in technology, cyberlaw, and socio-cultural norms.)

Browsing the Free Photography Zone Gallery
Browsing the Free Photography Zone Gallery, 2006

Over the coming months, we will continue to dialogue with photographers, theme camps, artists, interested participant groups, Creative Commons and the Electric Frontier Foundation (EFF) in order to improve our policies for the present and for the future. We will be talking (if not facilitating public discussions) about this process at the Burning Man event, at the Open Video Conference in New York City (Oct 1-2, 2010), and other locations to be announced.

At the same time, we want to engage in an ongoing public dialog — a Debate in the Dust, if you will — through this blog series, featuring a diversity of representative voices sharing their perspectives on various aspects of this multifaceted issue. It should be noted that the perspectives expressed in these posts don’t necessarily reflect those of the Burning Man Project. Instead, we intend this Digital Rights blog series to be an arena for a thoughtful discussion within our community and beyond. We invite all readers’ commentary, and request that comments be constructive in nature while adhering to our Comment Policy.  Thank you for contributing to the ongoing evolution of the Burning Man project!

Wired Article: Burning Man Rethinks Its Legal Ownership of Your Photos
Burning Blog Post in Response to EFF Critiques, by Andie Grace
Electronic Frontier Foundation: Tell Burning Man To Respect Your Digital Rights
Electronic Frontier Foundation: Snatching Rights on the Playa
Boing Boing Commentary
Burning Blog Post by John Curley

About the author: Rosalie Fay Barnes

Rosalie Fay Barnes

Rosalie Barnes works year round in San Francisco as the Senior Project Manager for the Government Relations & Legal Affairs Department of Black Rock City, LLC. During the Burning Man event, Rosalie is part of the External Relations Team, a program that gives tours of the art and infrastructure of Black Rock City to visiting officials and cultural ambassadors. Rosalie received a Bachelor of Arts in Theater from Brandeis University and in 2009, she received a double Masters from Harvard, focusing on Technology, Media and Learning. She first participated in Burning Man in 2000, and came to work for the Man in 2009.

21 Comments on “Welcome to Digital Rights: Debates in the Dust

  • AJ Styles says:

    Although at first i was against the Burning Man legalities involving photography and video recording, the more i’ve been hearing about it, the more i’ve been thinking about, and i’m completely fine with the rules how they are now. Consider this situation:

    You were photographed at Burning Man without your consent, and you’re caught either topless, naked, in a suggestive pose, or otherwise. You have no knowledge that your photo had been taken. Then one day, while at the book store, you find a book of Burning Man photography, and there you are, in all your Burning Man glory, on the front cover. You’ll no doubt be p/o’d. You tell them to remove the book from the shelf. they refuse. You call the publishing company. 2 million copies are already on book shelves coast to coast. You decide to take legal action. Who are the courts gonna take more serious? a single person complaining about a single photo, or a multi national organization with the legal rights to every photo in the book. Even if you did manage to get half of the people photographed in the book, the courts will probably do nothing more than award little more than chicken scratch to shut you up. Or say the book hasn’t been printed yet. Which is gonna stop the presses faster? one person with a minor lawsuit, or a class action lawsuit with a cease and desist order?

    Burning Man has a team of lawyers behind it that you never could. Shut up, hand over the rights to your photos to Burning Man, and enjoy the event. You wouldn’t want a picture of yourself grinding against a guy in a pink speedo, and neither would any of the people you took pictures of, spread coast to coast in a book, calendar, newspaper, or worldwide on a website. Leave it how it is, and move on to more important issues… like who used the last of the toilet paper in the porta-crappers?

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  • I’ve been thinking about this for years; more intensely recently in light of debates. I had suggested “participation” is performance ergo copyrightable, but that’s not so. I continue to feel this is a solid grounds related to physical art that is photographed.

    However, that led me to a new facet of my issue with photography: commodification of people. One of the 10 Principles is Decommodification. It’s not an easy concept to get your head around: if it were “no commerce”, it would be “Decommercialization”. But it’s about not making people into a commodity.

    Consider all the ways we are treated as product. Corporate staffs don’t deal with individuals but interchangeable “human resources.” Your Facebook posts are treated less as sparks of creativity but more as data to be aggregated and distilled to ascertain target groups. How you earn money is treated as if that is what you _are_.

    “Decommodification” turns all this upside-down, and once I was immersed in Burning Man for a while, I felt free and real in that unique way for the first time in my life. It has, however, made me much more sensitive to such things all the time. It’s still rather new and I have a hard time articulating it — and worse, most people I have met not only can’t begin to comprehend this alternative, things like targeted marketing make them feel wanted, special, and _more_ unique.

    So let me divide up photography at Burning Man into several broad categories:

    1. In UK English parlance, “vacation snaps”: people taking pictures of their friends and acquaintances as a record of their time at Burning Man — an innocent use of photography where the image is not the centerpiece, but simply the personal desire for a record.
    2. Photographing the physical environment of the event: photographing the material art and such — which can be covered in terms of copyrighted artwork, yada yada.
    3. Photographing the people of the event as part of the art: this values the person as an individual far more than the value of the image itself.
    4. Photographing the people of the event as a product: this emphasizes the value of the image over the value of the individual.

    To me, the entire debate revolves around the reason for photographing people. The black-and-white cases are easy: someone taking an artistic picture of two naked women dancing and sharing it with everyone as a record of Burning Man versus someone taking a high-resolution flash photograph of the same moment and selling it in a collection of pornography. The first case tries to capture the individuality and the moment, the second case commodifies it.

    But even if one could find a way to make a rule as to what is too much commodification, there is no way to determine that when the photograph is taken. Worst of all, not even the photographer can ascertain it at that moment.

    A bizarre way to think of it is that taking a photograph brings a piece of the future default world into Burning Man — just as walking around with a KFC bucket brings the past default world. Since it’s the future, it isn’t written or known yet, but it definitely drags default-world ideas into the event. On a personal level, I think the ideal reaction is, “don’t worry about it”. When immersed in Burning Man, one does not worry about the future default-world events (be it bills to be paid or New Year’s Eve plans), and I think I’ll try to treat photography the same way.

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  • den den- aka mumblz says:

    the pictures i take are free for anyone to use. i don’t take critical tits pics anymore once was enough and insight the other. to each is own . If you can find some sucker who will pay for stupis shit go for it hugh hefner made gazillions the sheep are there and it aint a biggie squiggy

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  • Headless says:

    Zhust got it right with “don’t worry about it”. Unless you’re in the porn business, it’s not likely to affect what you can do what your pictures. Yes, the rules say that you can’t do anything with them, but as a practical matter you can do almost anything: post them on your facebook account, your web page, even publish a paper book (as if anyone can afford to do that anymore).

    The annoying part is that this was not clear to me until after I spent many hours over several years parsing legalese and opinions on this issue. I figured there are so few rules at Burning Man, that I should really follow the rules they have, like no photography without permits. This unnecessarily kept me feeling uptight and like I was doing something vaguely distasteful whenever I took a photograph at Burning Man, even though I was fully in compliance with the spirit of the rules, and was in no jeopardy of punishment. These rules penalize people who pay attention to rules.

    So keep whatever minimum amount of legalese is necessary, but add a statement above the legalese that says essentially “This only applies to pornographers, so spread your creativity far and wide, burners!”.

    It would be really cool if Creative Commons could come up with a way to handle this in a transparent, standard way, ideally with decentralized community policing instead of centralized censorship, but if not then we’ve got to work with the default legal system.

    I still don’t see why anyone is concerned about corporate use of images. Corporations have to play by very strict rules, getting model releases and permission to use recognizable pieces of art in any advertising. So they have zero legal ability to “rip off” creativity from the playa without permission. What if an artist who needs to make a living in the default world sells rights to their playa artwork to a corporation? I say live and let live. Getting good art into corporate advertising is a benefit to society; the idea of staying “pure” is for art school students who have parents to pay their bills, not people who create their own reality. Most advertising these days is photoshopped; corporations can today get around the burning man legalese by compositing a piece of art they want to showcase with stock photos of the non-burningman playa, and if need be composite in a few background models dressed in freaky outfits. It’ll look just like burningman and be legal. To my knowledge all the actual cases of corporate use of burningman artwork have been of this form: composited pictures not taken at Burning Man, so not covered by the ticket legalese.

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  • Ariel says:

    -We’re well underway in the digital age.

    -Everyone acts differently when others are recording them (they let their hair down less).

    -I have a right to privacy.

    My opinion:

    -People who rely on capturing their experience with cameras don’t act like humans in the moment.

    -Burning Man has become more image conscious as photos have come to the playa in front of free expression.

    -Someone holding a camera OFFERS NEXT TO NOTHING to the playa experience; I have no use for their retrospectives! I don’t want them in my face.

    -It’s a violation of the 4th Amendment of the US Constitution.


    The more I think about it the more I realize there is nothing we can do to stop people from taking pictures; who wants to see people being ticketed for taking a snapshot? And yet we have to give privacy to critical tits and anyone who came to the playa hoping to feel freedom.
    And I’ve seen tons of pervy men on the playa. The irksome creepy types who grimace and don’t contribute a good vibe but rather live off of it like alienated vampires.
    For what burning man offers me, and indeed gives us all the relief we look forward too year after year, I think we should make it official policy to ban camera use. I don’t think it should be strongly enforced by the authorities, but it will empower someone who is having trouble with a stranger taking their photo.

    My first year someone took a photo of me naked by the carcass wash. I still regret not speaking up and I hope that photo isn’t on the internet somewhere, god knows where.

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  • RHBarbie says:

    The discussion is moot if there is no enforcement. 2010 saw a ridiculous number of pro level and consumer level cameras without tags. None asked permission. Camera phones and technology have evolved out of the control of BM. There should be a check at the gate and an express verbal confirmation of the guidelines with each participant. I began a project of documenting the ‘illegals’ and could not shoot fast enough to capture them which points to the futility of this debate.

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  • Bavarian Burner says:

    I think it’s ok that Burning man “owns” all Pictures taken on the playa as far as no private persons are persuited by law for having some pics on their Facebook Account etc.

    One of the Best Things about burning man is that you can be like you want to be without any fear of prejudices you face in the off-playa World.

    What would BRC look like if everyone has to fear seeing hisself the week after burningman in the newspaper?

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  • Posted October 1st, and TAKEN DOWN — why? I thought you encouraged debate:

    Grossly missing from this discussion is artists’ rights when photographers are essentially DOCUMENTING another person’s artwork. In the one-sided contract for funded artists with Black Rock City LLC, the ONLY thing artists retain is their copyright. Despite this, photographs of artists’ works are found all over the internet without giving credit to the author of those works.

    Photos of Mark’s temples and Bike Arch also have been found in art shows without a courtesy notification letting artists know, for sale at decompression, and in books without proper artist copyright notices, which should include the artist names. Further, some photographers are unwilling to remove watermarks bearing their copyright, making it appear they are authors of the work.

    Until this last time we looked at the website, despite having raised this issue before, proper copyrights were not even included on the Burning Man website, nor were artists notified or given copies of calendars sold by the LLC.
    We sincerely hope these items will be addressed.

    -llana Spector and Mark Grieve

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  • Rosalie says:

    Posted and taken down? Not because of us, I assure you:) the feed is going to take a few days to go live. Thank u for your comments.

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  • alex says:

    2011 was my first burn. It will not be my last but I will enter in more wary than i did previously because of photographers.

    When I get back I love seeing the images from the burn. The people, the structures all spread warm memories through my heart. I am reminded of the special times, the special friends, and the unique moments that you can only live and understand on the playa.

    However, I am also afraid of the photographers creeping around in the dust, in the structures, in the experience. They are the 3rd person limited narrative displacing themselves from the weirdos so that they can showcase them to the normals. And, being a wage slave to a conservative corporate environment the last thing I need is my cover to be blown by my boss happening across a wild picture some photographer snapped without my knowing.

    All of this seems theoretical but in my case it became a reality. I was sitting in my camp when my soulmate from costco came riding up on her bike with her bf. She introduced herself and he hung back near the edge of the camp with his camera. I realized about 2 sentences in that the camera was pointed at us for a while. He had no camera tag and he had not asked my permission to take pictures. Then I realized his lens was lingering a long time. He wasn’t taking stills he was taking video. He was using the Canon 5d DSLR which takes fine video and fine stills.

    I asked the couple what are they doing and nonchalantly they stated they were filming a documentary. Well, no way am I going to end up just another one of those crazy the film school couple captured at burning man. I put my hand up to block the lens and told them in no uncertain way that I did not want to be filmed.

    And that is when the air changed between us. Before the girl and the guy approached me with open minds and open smiles. Yet, as soon as I said no to their filming or their pictures they clammed up and were insulted. How dare I not let them film me. I invited them to stay and chat and have a beer or water, they refused. Then with the tension hanging unresolved between us they backed out of the camp and left.

    Photography and video are powerful things in this current digital age. They are easy to manipulate and take out of context. They are easy to spread.

    I want to keep Burning Man a safe space. A place where shirtcockers can feel free to wander around in the dust. Where a woman dancing around nude doesnt need to worry that her picture is going to end up on someone’s blog.

    Between the struggle to keep art and expression free versus the rights of the people participating at burning man i vote for the particpants.

    The fact is that while these photographers may be at the event taking pictures they are publishing the pictures after the event. If these pics were published at the event or appeared and disappeared with the event or followed the ephemeral way of Burning man then I would be all for them.

    However, to me Burning Man is like a sand painting. It exists for that time. You cherish it for that time. Then as it washes away you are left with only your memories.

    Honestly, I would just settle with people respectfully asking people’s permission to photograph or video them at Burning Man.

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