Up in Flames: The Fight Over Burning Man

Up in Flames: The Fight Over Burning Man

by Ellen Rosner Feig, December 2009

"There's no reason to believe that [the lawsuit] will kill the spirit of Burning Man...I assure you these people in the desert are going to keep doing this whether or not it's called Burning Man. I personally think the outcome of the lawsuit is ultimately irrelevant."

Brian Doherty, Newsweek Interview, 1/16/07

What started as a little artistic gathering on a beach in San Francisco called Burning Man has now grown into a six-day festival of freedom and expression with over 40,000 visitors gathering on desert in Northern Nevada. Ending with the burning of a forty foot man, the festival has become synonymous with the notion of a "temporary community dedicated to radical self-expression and radical self-reliance."

When John Law, one of the original founders of Burning Man, filed suit against his ex-partners Michael Mikel and Larry Harvey in January of 2007, festival followers cheered Law's attempt to return the festival's trademarked name to the public domain. In actuality, the issues surrounding the suit are much more complex.

John Law's Argument:

Law filed suit against board members, Michael Mikel and Larry Harvey in January 2007 arguing that the men violated an agreement signed in 1996. Law's complaint argues that at all times during the partnership; he was the recognized "technical and logistics leader of the event." Acknowledging such, the three men agreed to execute a written partnership agreement and jointly file an application to register BURNING MAN as a service mark.

According to Law's complaint, Harvey began to represent that Law had not contributed in any way to the "development and success of the event." Further, Law believed that the event had become a "source of self-promotion and gratification" for Harvey. After negotiation, the parties agreed to dissolve the partnership and executed a Dissolution Agreement on July 22, 1997.

Law believed that such dissolution would create a LLC, known as Paper Man LLC, owned by the three men equally and that the only role of the LLC would be to license the Burning Man mark. The newly formed LLC would be assigned the mark, would then license the mark under "terms that would protect the mark from entering the public domain" and would be the sole licensor of the mark. Under terms of the operating agreement, all members were to be consulted prior to making any decisions on behalf of LLC.

Law states that Mikel and Harvey then formed Black Rock City, LLC, which licensed the BURNING MAN mark without ever entering into written agreements with Paper Man. Accordingly, Law argues that Mikel and Harvey never intended to comply with the Dissolution or Operating Agreement and thus violated same.

Law also argues that the Burning Man festival has developed certain unique trademarks, service marks and trade dress "apart from and in addition to the 470 Burning Man Mark; these include the Burning Man Logos, service marks Black Rock City, Flambé Lounge and Decompression, and the trade dress of the Burning Man festival. Due to Law's belief that such assets, when not specifically included in the Dissolution Agreement, were distributed jointly.

Law's complaint goes on to argue that such marks when owned by more than one source "will result in the mark being inserted in the public domain." Law's argument is clear - either all of the marks have already entered the public domain or such marks are held in a constructive trust by "de facto partnership comprised of [Law], Harvey and Mikel." In his complaint, Law also requests accountings, and claims that Harvey has committed fraud by "misrepresenting material terms and conditions of the Partnership Agreement, Dissolution Agreement and Operating Agreement."

Michael Mikel's Argument

Mikel, in a suit against Law and Harvey, argues that on May 14, 2000, Paper Man LLC and Black Rock City LLC entered into a license agreement for use of the mark BURNING MAN. Mikel negotiated on behalf of Paper Man and Harvey acted on behalf of Black Rock City. Paper Man was subsequently granted informal extensions of the license at the same rate delineated in the first agreement. However, in 2004, things between the two companies fell apart when Harvey asked for an exclusive 10 year license with right to assign to anyone they so desired and Mikel refused.

In response, Harvey stopped paying the license fee and on behalf of Paper Man executed and signed a license agreement with Black Rock City, without knowledge of Mikel or Law. Mikel asks that Harvey be expelled from Paper Man, sell his membership back and be prohibited from participating in business related to Black Rock City and Paper Man. Law is named as a defendant for the sole claim of repayment of expenses that Mikel allegedly advanced on behalf of Paper Man. More recently, Harvey and Mikel have agreed to go to arbitration (pursuant to the LLC terms) to determine their dispute.

Does Burning Man Belong to Everyone?

In his blog, johnlawspeaks.wordpress.com, Law states, "I decided to fight to keep anyone from having an exclusive right to capitalize on these brands. Burning Man belongs to everyone." Harvey and Mikel, on the other hand have stated on the official Burning Man site, that allowing the trademark to enter the public domain would make it "freely available to individuals who would use it to make money," going against the very principle of the event.

Law's claim that the marks have entered into the public domain will be decided in the months ahead; until then burners continue to argue on the Internet about the exploitation of a name that evokes a sense of community and freedom.