Do it like they do on the 'Discovery Channel'...

[Chai Guy]

Ah here's something (but it's from the "media" so can you really trust them?)


Just like a Springsteen concert or Giants game, Burning Man is a private event, and the people who organize it have the legal right to impose any restrictions on media coverage that they want. After all, Burning Man rents the property on which the event is held from the Bureau of Land Management, there is a fence around the perimeter, and attendees have to pay to get in. Still, organizers say they're not being tough on the media simply for tough's sake.

"It's not about controlling the press," says Marian Goodell, Burning Man's "Mistress of Communications," who oversees the event's public affairs. "It's about imagery. It's easy to turn imagery into a commodity

source: http://www.sfweekly.com/issues/2002-08- ... ure_2.html

[Bob]

I don't understand what you're saying with the quote, Chai.

[Chai Guy]

There was some debate earlier in this thread wrt: the event and it's public or private status and the media. I thought this quote from the SF weekly might shed some light on that subject, however, keep in mind that this is still just one person's opinion.

[the fire elf]

this is still just one person's opinion.

thank you for sharing

[Bungiti]

Chai:

Earlier you stated that “[a]nd again, the issue isn't wether [sic] someone can photograph you or not, the issue is what they can do with that photograph.” Going back to that, do you feel that the use of images recorded during burning by the discovery channel/ NY times was a “commercial use”? I believe you would say yes.

However, going back to the website regarding copyrights and fair use you referenced earlier, I found the following in a section titled “Informational Uses”:

“A release is not needed to use a person's name or image for informational purposes. An informational (or "editorial") purpose is anything that informs, educates or expresses opinions protected under the First Amendment of the United States Constitution (protecting freedom of speech and of the press). An informational use would include using a person's name or photograph in a newspaper or magazine article, an educational program, film, nonfiction book, or informational webzine (a magazine published on the World Wide Web).”

http://fairuse.stanford.edu/Copyright_a ... /12-b.html


To me this seems to suggest that the piece by the discovery channel would constitute a “film” that “informs, educates or expresses opinions” covered by the first amendment. I say covered by the 1st amendment in that there would be no grounds for the government to prohibit the ideas/expressions in the film barring a compelling state interest.

Now, I do recognize that the discovery/NY times channel made money from showing the piece. The money however does not come from the film itself but from the advertising that is shown alongside the film. Those advertisements are commercial speech and use of your image in the commercials would be protected.

I believe that it is somewhat unfortunate that television is not something for people to watch good programming but in reality seems to be designed to get people to watch advertising. And how do you get people to watch hours and hours of ads, by throwing in some entertainment here and there.

What do you think?

[Chai Guy]

do you feel that the use of images recorded during burning by the discovery channel/ NY times was a “commercial use”? I believe you would say yes.

Yes, and I would give a few reasons for that, including the fact that "Only in America" is set up just like any other fictional television program. The host is paid a residual fee every time it is shown, and many of the actions were/are scripted, rehearsed, and re-shot. It's not a news program, the NY Times Review says as much.



Here is an example of a ruling that might be more relevant:

The entire act of a circus performer was filmed and showed on a televised news broadcast in 1972. This was not a misunderstanding: the day before the surreptitious filming occurred, the performer had asked the reporter not to film the performance. The performer sued the television station for "unlawful appropriation" of his performance. The U.S. Supreme Court and the Ohio Supreme Court held that the television station had no immunity under freedom of the press. Zacchini v. Scripps-Howard Broadcasting, 433 U.S. 562 (1977); 376 N.E.2d 582 (Ohio 1978).

source (scroll all the way to the bottom of the page)
http://www.rbs2.com/privacy.htm#anchor777777

[Bob]

Chai, did you realize the crux of Zacchini v. Scripps-Howard Broadcasting was over damage to the commercial value of the performer's work versus freedom of the press?

http://www.bc.edu/bc_org/avp/cas/comm/f ... chini.html

[Chai Guy]

Yes, I do realize that, however in this case Discovery Channel filmed someone who makes her living as a performer, there is the relevance.

(I didn't really make that clear, sorry).

[Sean]

From my understanding (my poor understanding) of US law I think BMORG is in the clear. Now the ethical department is where I see a few contradictions.

[Chai Guy]

Legally, I think this is between the person(s) filmed without consent and The Discovery Times Channel. The ticket clearly states that Bmorg reserves the right to "take no action whatsoever".

[Sean]

The part I find finda blurry is wether when you enter the event if you give BMORG permission to use your copyrighted material while you are in the public area's of the event, and if this is the case then they did grant that asshole err... reporter from discovery the right to film and gave him license to use copyrighted material. ( I could be 100% wrong im not a lawyer)

[Chai Guy]

There is absolutely nothing I've read to suggest such a thing. In fact, we asked Andie Grace essentially that question, or rather, "Does the statement on the ticket preclude an individual from taking action against an entity that filmed them without consent?", she stated that it did not and that the disclaimer on the ticket simply allowed Bmorg to persue litigation on the behalf of a participant if for some reason they weren't able to identify them.

To download the interview go here:
http://nospectators.com/burncasts/Burncast_1.m4a

[DaBomb]

In the podcast, Andie explains that all commercial media is contractually bound to have all models/artists/participants sign such a release before using said image. This includes Discovery.

Discovery clearly broke the terms of the contract and used my image, my art and my performance for commercial profit without my permission.

Again, if ME, of all people, can have my image broadcast around the world without permission, what about the rest of us?

Given my position on this -- before, during and after the event, as is well documented -- Burning Man has self-appointed themselves (as per the back of the ticket) to protect my copyright and privacy rights. And yet they do nothing.

It has been over a week now since the show aired. I have contacted Discovery Channel to cease and desist and YET, Burning Man remains mute on this issue. The silence is deafening.

BMorg invited Discovery to the event and even took an undisclosed fee from them for the privilege of filming us. That said, they took my money when I bought my ticket, as well as Discovery's undisclosed sum.

The questions is: whose interests will BMorg protect? The community such as ourselves? Or big corporate media?

[Bob]

Let us know when you have a transcript in ASCII plain text instead of something for which I have go out and buy an Apple Computer ear appendage.

And if you're going to rest your arguments on US law per Zacchini v. Scripps-Howard Broadcasting, please enlighten us more on your own interests re: your commercial value as damaged by Discovery.

Note that it was a split decision, and in the dissenting statement of Powell, Marshall & Brennan, they "do not view respondent's action as comparable to unauthorized commercial broadcasts of sporting events, theatrical performances, and the like where the broadcaster keeps the profits. There is no suggestion here that respondent made any such use of the film. Instead, it simply reported on what petitioner concedes to be a newsworthy event, in a way hardly surprising for a television station--by means of film coverage."

"The Court's holding that the station's ordinary news report may give rise to substantial liability has disturbing implications, for the decision could lead to a degree of media self-censorship.... Hereafter, whenever a television news editor is unsure whether certain film footage received from a camera crew might be held to portray an "entire act," he may decline coverage--even of clearly newsworthy events--or confine the broadcast to watered-down verbal reporting, perhaps with an occasional still picture. The public is then the loser. This is hardly the kind of news reportage that the First Amendment is meant to foster."

"The plaintiff generally seeks to avoid any sort of public exposure, and the existence of constitutional privilege is therefore less likely to turn on whether the publication occurred in a news broadcast or in some other fashion. In a suit like the one before us, however, the plaintiff does not complain about the fact of exposure to the public, but rather about its timing or manner. He welcomes some publicity, but seeks to retain control over means and manner as a way to maximize for himself the monetary benefits that flow from such publication. But having made the matter public--having chosen, in essence, to make it newsworthy--he cannot, consistent with the First Amendment, complain of routine news reportage."

Re: Burning Man -- the BRC-LLC owns the event, and you're only "performing" there by their permission, and only because they provided a venue. Get used to it.

[EvilDustBooger]

So. In other words...in LEGAL Speak.....Fuck You?


let me think about that for a minute and I`ll get back to you.

[Chai Guy]

Let us know when you have a transcript in ASCII plain text instead of something for which I have go out and buy an Apple Computer ear appendage.

An Apple Computer isn't needed Bob (nor is an Ipod thingy), for a tutorial in how to download this interview on computers using a variety of operating platforms and software go here:

http://nospectators.com/index.php?page=burncasttnt

I could also snail mail you a copy, would you prefer cassette tape, compact disc or 8 track? (In all honesty, I might have some difficulty with the 8 track, but then, I know how you enjoy the older technology).

I'm going to disagree with DaBomb on her contention that Bmorg should "do something" clearly they've stated on their ticket that they reserve the right to do nothing at all, a reply to such effect might be nice, however.....

Re: Burning Man -- the BRC-LLC owns the event, and you're only "performing" there by their permission, and only because they provided a venue. Get used to it

Bob, could you enlighten us as to what written statements you’re basing this theory on? I've seen no evidence that Burning Man owns the rights to broadcast any performer’s image, likeness, or art, and that is what we are talking about here.

[Bob]

I certainly don't go to Burning Man expecting privacy or protection of my private commercial interests.

How many hundreds of vanity websites are there that plaster our images all over the freaking Internet? Why don't you object to that, being that it's more persistent than a one-off TV show?

How often do you see art from the event on these websites presented with proper attribution, much less permission? That's the ethical burner-on-burner crime that sticks in my craw.

Of course, if you're a famous asshole with an art grant, it's a different matter.

[Chai Guy]

How many hundreds of vanity websites are there that plaster our images all over the freaking Internet? Why don't you object to that, being that it's more persistent than a one-off TV show?

Well, for one thing those vanity websites aren't generating hundreds of thousands of dollars in ad revenue, and the people who created them aren't being paid residuals for my appearance.

How often do you see art from the event on these websites presented with proper attribution, much less permission?

No argument with me here, I tend to agree with you on this. What really makes me mad is seeing the photographers watermark all over the picture as if standing in front of a person or art piece and pushing a button is worth more recognition that individual who constructed the thing the image is reflecting.

Of course, if you're a famous asshole with an art grant, it's a different matter.

I don't think I really get what you're saying here.


Bob, are you also telling me that you're not interested in listening to the interview under any circumstances? If you don't want to give me your snail mail address I can mail it to Burning Man HQ care of Andie Grace and you can pick it up next time you're in the office.

[Bob]

Urm... if the accessibility of a plain text transcript versus something that requires an intellectual & commercial investment in some sort of technology that only the extremely uncool would lack, then nevermind.

Again, the Supreme Court case you yourself cited hinges on the commercial value and commercial interests of the performer's work, as opposed to the news outlet's First Amendment rights. I naively assumed the Naked Firedancing Church Ladies' Auxiliary might take the opportunity afforded by Burning Man's commercial BBS to demonstrate their commercial value and interests which were violated in a manner similar to the Human Cannonball cited in the case.

[Chai Guy]

Once again Bob, I've offered to present the audio interview in a format that you could listen to. For the record, I don't own an apple or an ipod, and I was able to download it on a windows 2000 machine no problem. I don't have windows 98, but I'm pretty sure it will work on your machine (the one you're using to post to this bbs right now). Transcribing an hour long interview into text format so you can read it using the same technology you could use to download it, isn't very interesting to me.


I don't feel comfortable talking about the specifics of what DaBomb does for a living therefore I can't really explain how it relates. I'll let her get into as much or as little detail about it as she wishes. Or she can pm me with permission to do so.

[lurker]

What I keep thinking is that Paparazzi take pictures and sell tem all the time--and the performers they photograph don't get squat. Sometimes they are photographed in exceedingly private spaces.....and they don't get squat.

Occasionally, after a long court battle some of these performers can manage to get a court to areee with them that the photographers stepped over a line---but usually they get to that they had no reason to expect privacy given the venue/situation.

I can sympathise, but I can't see that DaBomb has any legal recourse

[Chai Guy]

Right, but the difference is this, the Papparazzi take photos of celebrities in public (airports, restaurants, etc.) the accompany those images by crediting the people in them and provide factual context.

In this instance we have a television series, the premise of which puts an actor (media man), in a fictional story, using Black Rock City and it's participants as a backdrop.

It's not a news program as evidenced by the fact that they seek releases from people appearing in it. They failed to obtain a release from DaBomb and thus should remove her from the program.

[Bob]

"Performer". I keep seeing that word more and more wrt Burning Man.

Chai, when you guys sort out US constitutional law versus tort law versus Burner Principles versus Church Lady Do's & Don'ts versus plain old ethics, pls get back to us.

[Chai Guy]

Will do Bob, and it might help if you took the time to view and listen to the subject matter that is being discussed.

[HughMungus]

I just watched it. It was OK. Kind of dis-jointed and not super deep. I felt like the reporter was trying to play a role he thought he was supposed to be playing (crazy wild burning man attendee) instead of interacting and reacting to it like anyone else might have. This sort of hobbled the whole thing. That said, it was a lot better than it could have been so kudos to you Charlie. Some very important points were made about gifting/giving, art, human interaction, what burning man "is" to some people (beyond being a big party), etc. (mostly by the people interviewed, not by the narrator; bravo to those who were interviewed -- you made some great points). I don't think it was too exploitative as far as nudity, sex, drugs, partying, etc. goes. One thing I would have loved to see is more about theme camps -- not so much about the camps themselves but about how people organize themselves into groups to accomplish this or that and how people interact with each other outside of art exhibits, fire spinning, etc.

The TLC piece in 1998 was better. That one gets me emotional every time I see it because it was just so intense and dead on (it's focused on people who attend rather than an outsider's attempt to understand).

Anyhoo, planning on having a few Burner get-togethers here in Dallas to show the new piece and the one from 1998 to those who haven't seen it (and it's a good excuse to get burners together).

[Mister Jellyfish Mister]

Discover Times interview of MiniMan and Kernul Killbuck, a little 3 Meg splice of Only In America thanks to Chromatest. Click here:

http://www.chromatest.net/Chromatest/MiniMan2005.wmv

[Dr. Pyro]

Holy moly, am I the only one who likes Burning Man just the way it is?

[spectabillis]

aparantly

[Bob]

FWIW, I fully expect Burning Man to be the way it is.

[HughMungus]

Holy moly, am I the only one who likes Burning Man just the way it is?

I do!