On Monday, September 8th, Quizno’s released its latest parody ad, The Burn Trials; this time parodying the Burning Man Festival. While it was well-received by just about everyone, including members of the Burning Man community, the organization that owns and operates Burning Man has threatened to sue Quizno’s for misappropriation of its intellectual property.
Burning Man is an art and music festival held each year in the Black Rock Desert of Northern Nevada. The festival is surrounded by a strong international community of “burners” who have either attended the main festival or one of its many off-shoot regional festivals. Burning Man also promotes a core set of 10 principles in all of its projects and asks attendees to carry those principles with them out into the rest of the world. One of those principles is Decommodification; a rejection of commercial, for-profit transactions and advertising. Quizno’s using the Burning Man name and image to sell sandwiches directly conflicts with the principle of Decommodification.
The parody ad was put out by Toasty.tv which is a marketing project owned by Denver-based Quizno’s that creates high-quality parody videos, usually mixing two well-known properties together. In The Burn Trials Quizno’s combined the plot and characters from The Maze Runner movie franchise with the setting of the Burning Man festival. The video itself is a sharp critique of many cultural controversies surrounding Burning Man in recent years, including the growing prevalence of ultra-rich “plug and play” camps where individuals can pay thousands of dollars to have everything provided for them at the festival, including a plane ride in and servants, thus violating several of the ten principles
When the Burning Man organization threatened to sue Quizno’s, many “burners” and non-burners alike took it as Burning Man trying to shut down what may be an unflattering view of its festival. However, most of these people have little understanding of the law and why it is important of Burning Man to protect its intellectual property.
Does Burning Man even have a case? Many naysayers have pointed out that parody is commonly protected under the “fair use” exception to copyright or trademark infringement. However, there are four factors courts use to determine if a parody falls under the “fair use” exception; (1) the nature and character of the use; (2) the nature of the original work; (3) the amount and substantiality of the portion used in relation to the original work as a whole; and (4) the effect of the use on the value or potential market of the original work.
Where Burning Man likely has a case is under the first factor. The nature and character of use considers whether the parody’s purpose is of a commercial nature. Parodies used primarily for commercial purposes are automatically suspect. Here, the parody’s primary purpose is to sell Quizno’s sandwiches. This, combined with the other three factors also likely weighing at least slightly in Burning Man’s favor, gives Burning Man strong legal standing to challenge Quizno’s in court for infringing its intellectual property.
Even if Burning Man does not win this battle, enforcing is intellectual property rights is crucially important. If Burning Man let this one slide, it could jeopardize its intellectual property rights altogether, thus opening the door for companies from all over to use its name and image to sell products. Even though The Burn Trials is hilarious and well-done, if Burning Man failed to fight Quizno’s on its misappropriation, we could eventually see something far worse (think car insurance ad in Black Rock City).