As part of our Terms of (Ab)use project, we pay close attention to the fine print of online agreements for provisions that are potentially dangerous to consumers. We've noticed a troubling change in the way event planners restrict the rights of individuals who attend their shows. Where once these limitations had to fit on the back of a ticket, increasingly event organizers have moved their fine print online, where they are able to use even more contract law to avoid the limits of trademark and copyright law and actively control what ticket holders can say or do even after the event is over.
These burdensome terms can show up in some pretty unexpected places. Last year we noted how the Burning Man Organization (BMO) used online ticket terms to require participants to assign to BMO—in advance—the copyright to any pictures they took on the playa. Tickets for the 2010 event went on sale in mid-January, and we hoped the new terms would acknowledge the concerns we had expressed. Sadly, the new terms are just as onerous as before.
The "assignment in advance" clause is not the only burdensome provision. The BMO ticket terms limit participants' rights to use their own photos online, obliging them to take down any photos to which BMO objects for any reason and forbidding them from allowing anyone else to download or copy the photos. This means participants cannot donate their works to the public domain or to license their works, even through Creative Commons—no matter what is depicted or whether a use is noncommercial.
Even the notoriously protective Olympics allow spectators to take their own pictures or videos under their Ticket License Agreement, requiring only that the images "not be used for broadcast, publication, or any other commercial purpose." It is disappointing that the BMO cannot be at least as flexible.
Burning Man also continues to strip ticket holders of their right to make perfectly legal uses of its trademarks, forbidding participants from even using the (trademarked) term "Burning Man" on any website. In other words, participants who’d like to blog about their experiences at the event can’t use the words ”Burning Man.” Thus Burning Man uses contract law to do what it cannot under either copyright or trademark law—exert extraordinary control over participants' speech.
Why would BMO—the organizer of an “an annual experiment in temporary community dedicated to radical self-expression and radical self-reliance”—undermine speech and creativity like this? BMO claims that the terms in the Burning Man ticket agreement are necessary to protect Black Rock City’s unique culture and the privacy of its participants. Furthermore, BMO points out that the limitations are rarely enforced and they only claim copyright if the photos are used in a way BMO doesn't authorize. By claiming copyright in all photographs taken at the event, BMO can use the streamlined "notice and takedown" process enshrined in the Digital Millennium Copyright Act (DMCA) to quickly remove unapproved photos from the Internet.
But using online ticket terms for fast and easy takedown and to restrict CC-licensing and dedication to the public domain is a terrible precedent to set. As we pointed out in our post about this issue last year, doctors working with the tort reform group Medical Justice used contract law in the exact same way to censor negative reviews on Yelp and similar sites.
We understand the real challenges BMO faces in trying to preserve its noncommercial, community character. And we are aware that the current BMO enforces these terms only rarely. But a benevolent censor is still a censor—and BMO may not always be so benevolent. The bigger danger, though, is that other event organizers will take a page from the BMO/Medical Justice playbook, and assignment and abrogation of rights will become standard Terms of Ab(use) in all online contracts.
Copyright and trademark law were not intended to be used this way, and the collateral damage to speech and creativity inherent in the restrictions included in the Burning Man ticket agreement is too great. If the good folks at BMO continue to use ticket restrictions like this, Burning Man may very well become a new kind of model—not of temporary community and support for individual creative expression, but of permanent restriction on that very expression.