Because Burning Man officials understand fair use law even less than they understand sewage disposal, pest control, and Segway safety, the non-profit behind the festival announced they will be exploring legal action against Quizno’s for the above parody video.
A few thoughts:
2. Seriously, who in the hell made that? How? That was way too good to just be viral marketing for a fast food restaurant. Is this the world we live in?
3. That sandwich actually looks pretty tasty — so, chalk one up for viral marketing.
But instead of having a good-natured laugh at the inherent silliness that pervades everything about the festival then ordering one of those toasted subs for themselves, officials at Burning Man are considering a lawsuit. According to Burning Man spokesman Jim Graham: (via Reno Gazette Journal)
We are pretty proactive about protecting our 10 principles, one of which is decommodification…We get quite a number of requests each year from companies wanting to gift participants with their product or to capture imagery or video of their products at the event, and we turn them all down.
And in case you’re wondering about the rest of Burning Man’s 10 principles, they are listed below accompanied by the obligatory photo of a guy dressed like a steampunk/disco/Día de los Muertos skeleton (obvs.):
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Burning Man founder Larry Harvey wrote the Ten Principles in 2004 as guidelines for the newly-formed Regional Network. They were crafted not as a dictate of how people should be and act, but as a reflection of the community’s ethos and culture as it had organically developed since the event’s inception. As Burning Man spreads beyond the realm of event production, the 10 Principles have become an ethos which can be used to help make the rest of the world become a bit more like Black Rock City. | #beyondBRC #burningman #blackrockcity #10principles #burningman2015
And while Burning Man officials successfully sued Girls Gone Wild for filming during the festival without permission, it still has not been confirmed that the Quizno’s crew actually shot in Black Rock City during Burning Man. If Quizno’s video was not filmed on festival property, then Burning Man’s lawsuit appears to fall under the classic legal argument of “stop making fun of us!”
As much as it sucks to get made fun of (author’s note: the Facebook comments about my Stephen King article last week definitely reminded me of this), parody is a legally protected form of expression. But don’t take my word for it; here’s what the scholarly legal minds over at Stanford University had to say about parody:
A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Judges understand that, by its nature, parody demands some taking from the original work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to “conjure up” the original.
Using this as a guide, it appears that Quizno’s video fits every definition of parody. And, compared to some other institutions that have been in the crosshairs of parody during the past few years, Burning Man got off pretty easy with this video. If anything, the Quizno’s ad was one of the few things that made me think Burning Man might not be completely awful. This was the other.
No reasonable person would think Burning Man endorses Quizno’s submarine sandwiches because of this video, so instead it appears the planned lawsuit is nothing more than a fight against free speech. And fighting against free speech, especially free speech that also happens to be hilarious, doesn’t seem very “Black Rock City” of Burning Man.
Unless of course, Quiznos actually did shoot the video at Burning Man without permission, in which case, Quizno’s is going to owe a lot of back rubs and toasted veggie wraps to the Burner crew.
In this author’s humble opinion, regardless of where the video was shot, Burning Man should drop their lawsuit and follow the example of the Mormon Church. In 2011, the creators of South Park, Matt Stone and Trey Parker, paired with Avenue Q’s Robert Lopez to debut their Broadway musical, The Book of Mormon. And unlike Quizno’s light mocking, The Book of Mormon prominently featured closeted homosexual missionaries, a musical recreation of Joseph Smith dying by way of violent diarrhea, and the church’s holiest book being lodged inside a rectum. But since this musical was done by the South Park guys, all of these scenes were also hilarious, and insightful, and set to catchy music.
While the Mormon Church could have taken the Burning Man approach and threatened a lawsuit, they instead accepted the play as the free speech that it was, and embraced the publicity that came from the award-winning musical. And when I went to see The Book of Mormon in Los Angeles, and I saw the church’s advertisement in the program–“The book is always better”–I was both impressed and surprised that they took the high road. The advertisement and my warm feelings for the church remain two of my strongest memories from a day when I also heard this profane and blasphemous song.
For their part, South Park creators Matt Stone and Trey Parker were both impressed, and unsurprised by the church’s response: (via NPR)
Before the church responded, a lot of people would ask us, ‘Are you afraid of what the church would say? And Trey and I were like, ‘They’re going to be cool.’ And they were like, ‘No, they’re not. There are going to be protests.’ And we were like, ‘Nope, they’re going to be cool.’ We weren’t that surprised by the church’s reaction. We had faith in them.”
Instead of accepting the good-natured ribbing with class and humor like the Mormon Church, it appears that Burning Man is moving forward with the lawsuit. This is a disappointing development, but perhaps we shouldn’t be surprised. After all, not everyone can be as open-minded as organized religion.