Art Versus Money

At the end of last month, BMOrg breathlessly announced all kinds of exciting news. They said:

(shhhh, just between you and us …) we’re working on a really really BIG project that will serve to tell the Burning Man story as it is today and into the future, and it’s gonna be RAD. You’ll know it when you see it.

On a more practical note, if you want to apply for a BRC Honorarium Art Grant for 2015, we’re changing the process, and rolling it out in mid-November … get ready, and watch for it!

It’s now past mid-November, getting into late November, and we’re still waiting. Waiting for the really really BIG RAD thing. Waiting for the new online Art Grant submission system. Waiting for BMOrg to respond to all the community concerns about Commodification Camps. Waiting for the theme (which rumor has it, is Circus). And waiting for everything else we’ve been promised that’s still “coming soon”.

I don’t know about you guys, but personally I’m sick of waiting. This event happens for a week once a year, it is now a quarter of a year since the last one. What do these people do all day, in their fancy offices with their $8.5 million year-round payroll?

The Jackedrabbit said:

Y’know, used to be the months right after the Burn were pretty chill around BMHQ. It was kinda quiet. Well, that’s long gone, tell you what. Now that we’re working to foster Burning Man culture in the world year-round, there’s no downtime anymore. But hey, it’s pretty great work to be doing…our staffers are out in the field, giving lectures and talks about everything from the 10 Principles to community building to ritual, death and transformation, as part of our ongoing education program.

Perhaps the hard work they’re doing is really making some sort of difference to the world. But what about our party? What about our community? That’s what makes them $30 million a year. A little less focus on standing on a stage and talking about how great they are, and a little more focus on their customers would be nice. Especially since the unique thing about this event is we don’t buy a product that they put together for us; we make a product for them to sell.

Which brings me to the point of this post. Earlier this year, BMOrg finally announced what the 2014 Temple was going to be. Then, soon after, they announced that they’d changed their minds, and instead of Ross Asselstine’s Temple of Descendants, it was going to be David Best again with the Temple of Grace.

photo: John Goodman. Art: David Best

We covered this in:

Temple Debacle Highlights Hypocrisy

Temple Deal Falls Through

Temple of Decent Dance?

So what really happened? Thankfully for us Burners, artist Ross Asselstine has “put his head above the parapets” and risked the eternal anger of BMOrg…by telling us the truth. And the truth is shocking.

Ross has published a paper Art Grants at Burning Man: A Way Forward outlining exactly what happened, and helpfully including some suggestions about what could be done to make things better. Let me summarize this long document, by highlighting some of the key issues.

Basically, BMOrg treats the artists like absolute shit. They ask for concessions that show their interests are purely about themselves, and their own potential to make long-term profits. They want the artists to sign their rights away in a completely one-sided contract, that shifts all the risk to the artist, and shifts almost all the upside to BMOrg. Worst of all, BMOrg can re-sell those rights to anyone, any time. If they want to sell Live Nation the rights to commercially exploit the art, so they can license them for Fiat commercials, the artist is powerless to stop them. If the artist sells their art, BMOrg takes a cut; if BMOrg profits from commercial use of the art, the artist gets nothing. And if the artist dies, BMOrg gets the art, but the estate is still saddled with all the liability.

The art grants total for 2014 was $800,000, split this year amongst 60 projects. That works out to an average of $13,333 per artist, or $12.70 per ticket. Grants above $20,000 are rare.

This is nowhere near enough to bring large art projects to the Playa, so all artists are forced to do fund-raising for at least half, probably more than three-quarters of their entire project costs. They are not allowed to use the words “Burning Man” or images of their previous art on the Playa in their fundraising efforts. The Art Grant works out to about the same as what Burning Man spends on Travel, Training and Costumes for themselves. Their $1 million+ “mysterious other” which BMOrg say goes to the BLM but the BLM says doesn’t, is more than BMOrg spends on funding art at their event.

image: Peter Ruprecht. Art: Bryan Tedrick

Artists get told they have been awarded an “Art Honorarium Grant” about halfway through the burnal year, and only then do they get to see the contract they have to sign. Even if they sign it, they don’t get the money straight away – a big chunk of it, they don’t even get until months after Burning Man has ended. The pressure is on to complete their projects, so many just sign. Many artists have little in the way of tangible assets, so if they get sued, there is no real consequence. Or, if they can find someone to give them insurance (a process BMOrg provides no assistance in), the $1 million policy cap is enough to protect them. Artists are not generally experienced business people, so I wouldn’t be surprised if some don’t even realize what they are signing, in their haste to be “recognized” by Burning Man Arts. Most lawyers would advise their clients not to sign such a one-sided contract without requesting modifications; a $13k art grant barely gives the artists enough to pay a lawyer in the first place.

Some of the most egregious issues with this contract are:

1. BMOrg profits if the artist sells their art outside Burning Man. BMOrg can commercially license the images to anyone for royalties, and sub-license or transfer this right to anyone. However, the artist can’t do that.
2. When the artist dies, BMOrg owns their art.
3. Artists must get separate insurance, despite BMOrg’s event policy and ticket liability disclaimer.
4. In addition to #3, if there is any claim against BMOrg related to the art, Artists must pay that claim in its entirety, including all BMOrg’s legal costs and any payout from BMOrg’s insurance.
5. Artists cannot provide use the grant to provide food for their workers – BMOrg are literally starving artists.
6. Artists cannot pay themselves anything for dedicating a massive amount of their time to the Burning Man project.
7. Artists must pay BMOrg a daily rate for use of equipment and lighting.
8. If they score less than Green on the MOOP map, they can forfeit their entire grant. Meanwhile, $17,000/head Commodification Camps get a Red MOOP score, without any consequence.
9. Artists don’t actually get all the money from the Grant before Burning Man. A large percentage of it is paid in November or even January, after the event. If the artists breach even one clause, they can forfeit their entire grant.
10. The contract says “Integrity is the cornerstone of responsibility for every Recipient”, and yet there is no corresponding clause stating that BMOrg has a responsibility to act with integrity.
11. It requires all the work to be done on the artist’s premises. This is patently absurd, since the art has to be constructed and configured on the Playa.

BMOrg deny commission or commercial licensing rights to the artists, while they claim rights to license the co-copyright, and also sub-license it. The whole contract seems designed to keep the artists poor, and therefore servile.

The issue of transferring insurance responsibility to the artist – with a blanket indemnity clause that says if BMOrg is sued, the artist will pay all the costs of BMOrg’s legal defense and any payout from BMOrg’s insurance too – seems to create a potential liability for anyone who funds an art project. The damaged party could go after those who provided the funds to enable the art, if the artist themselves is not the one with assets.

BMOrg has far more money and resources than any of the artists. They spend $1.4 million a year on lawyers and accountants, almost double what they spend on art. BMOrg are required by the BLM to have their own liability insurance for the event – in 2013, they spent $532,632 on insurance. It would be easy for them to say: “in exchange for all the commercialization rights we take from you, and can pass on to anyone, we will cover you with our insurance policy. If something happens at Burning Man, the injured party will need to deal with our insurance company and our legal team”. As well as protecting the artists who make the event so photogenic and media-worthy, this would protect the Burners who contribute to funding the art. Remember that to get a ticket, you “voluntarily assume the risk of serious injury or death”.

Have you noticed how in all the media publicity surrounding the event, the photographers sometimes get credited, but the artists never do? Burners.Me are as guilty of that as anyone else, but how are we supposed to know who the artist is behind a given art car or art piece? It seems that BMOrg, who control the placement of the art, the funding of the art, and the commercial use of the images of the art, are in a position to know. They should make an effort to identify and promote the artists involved. How many people work full-time in their media department, 6? How many in their art department, 2? That’s a lot of resources that could be used to help promote the artists who slave away to create the photo ops.

Bliss Dance, by Marco Cochrane

Larry Harvey is fond of saying “no artist at Burning Man has ever signed their work” – a statement that I find a little hard to believe. But it seems that’s the way BMOrg wants it: they would prefer the artists to remain unknown, unfunded, starving, and unable to profit from their work – while BMOrg can use the same work to bring in multi-million dollar Commodification Camps, get articles written about them in the Wall Street Journal and Bloomberg and Rolling Stone, and earn royalties for themselves from someone else’s hard work.

What really motivates these BMOrg people? Is it supporting the Arts – or controlling them? Is it creating a space for a temporary community to form – or profiting from that? Is it bringing rich people and poor people together in a level playing field – or elevating themselves to the level of the ruling class? Is it promoting artists – or promoting themselves?

Here’s some of what Ross said in describing how the process of being selected as the Temple artist went down:

The review period started two weeks later than the previous year and ran three weeks longer than expected. All art projects were going to start five weeks late. Considering the temple is one of the biggest pieces out there and 22 weeks was now 17 weeks, I was in fetal position on the couch anticipating the tightening workload in the coming months. I has set aside six months of my life to do this and it was going to be very, very hectic if the piece was selected. Friends called …..“we know a secret!”, major artists invited me to parties to celebrate the award weeks before I had heard formally. I curled up on the couch, watching the time tick away waiting for a call. WTF. 

On March 23rd I got an email to call Burning Man and later that day during a phone call….notification of the award. I was thrilled…The small core crew I had listed on my submission was ecstatic. We laughed, felt that tingle of excitement and looked at each other knowing we had all done big things before and were ready to make this the best it could be. We raised glasses and then went at it hard. The entire “Temple Crew” was behind us and we ran like heck. 

I received the art grant contract a week later on April Fools Day. I had read contracts almost every day my entire career. The principle is not complex: two people agree to something and it’s written down…The Art Grant Contract was horribly one-sided. April Fools.

I had previously contacted insurance companies that knew Burning Man and now that I had something to insure, they had something real to price. There was nothing out there for over a million dollars in coverage. This was a building that would be occupied by hundreds 24/7 for a week in a harsh and challenging environment.

…I asked Burning Man for help. Nothing…I read the contract through again. My god, it was both silly in numerous places and so one-sided to be laughable. It was not just one issue, it was just plain weird on many issues. When things are badly written, you can almost see the person typing extemporaneously to cover every fear, every situation and then without proofing it…just pushing it across in an email to you. Bad contracts are almost always evidence of an author that is afraid or in over their head. 

This contract had evidently been around for a very long time. It read like it had never been refined or negotiated. After another two weeks of going full blast, I asked for help from Burning Man again. Two of us went to the offices in San Francisco and sat opposite four BM folks. There are meetings you attend in your life where nothing really happens. This was one. I walked them through my understanding of the personal risk I would be taking: my house and family’s wellbeing would be behind the very, very small amount of insurance and a thin LLC. I needed help. I tabled numerous common options and they were all rejected….the other side of the table did not care about the “artist”, because they never had to. They were all paid, insured and none of them were taking a dollar of risk. I was at the wrong table. It was actually all about me now. It was not about providing a place of respite for 70,000 people, it was not about our team fundraising the 60-70% of the funds, it was not about six months off and months to build the piece. If anything went wrong, there was no other side of the table other than lawyers: it was about me all by myself, all alone, and a contract with my signature on it. Or not.

So there you have it. No help for the artist. People who earn a salary working for BMOrg, and have no personal dollars on the line beyond that, shifting all the risk onto someone else and their family.

This contract has never been made public, before Ross’s whistleblowing. Now we know why. Will the new “online system” let artists see what they’re signing up for, before they submit their intellectual property with their “Letter of Intent”?

Ross Asselstine: Burner hero

Ross has suggested a number of very reasonable modifications to the contract, which would make it more fair and balanced. If BMOrg cared about artists, they would listen. Just like if they cared about their community, they would listen. Not just listen: act, accept responsibility for their wrong-doing and make changes to improve the situation going forward. That would show us that they heard us.

Instead, they’ll probably say “hundreds of artists have signed this contract, so we don’t care about one artist complaining just because we wouldn’t change the terms for him”.

Is fairness and a level playing field important to this community? Or should BMOrg be free to exploit everyone for money, wherever they see fit?

Ross says:

How can Burning Man become, and set the highest standard as, the best self-expression and art event anywhere in the world, by having the best support, grant process and environment for artists anywhere in the world?

I believe the “self-expression” portion of the question has been achieved. There is quite simply no other event like Burning Man. So many people have worked years to make it what it is. It’s unique, and the world comes to Burning Man for that reason. I think the answer to the “art event” portion of the question is how does the event move forward and develop the following items:
1) A transparent and equitable form of agreement for artists.
2) Adequate support, funding and an improved art department.
3) The best participant culture that respects and honors artists.
4) A fair and easily understandable process for use of artwork post BM.

Many attendees think that all artists at BM are there because they love all things BM. Most are there because it has a unique culture and unique prominence for large or unusual art. What is linked with this opportunity is a horrible  contract and huge burdens on artists. Almost every artist out there would not sign the contract if it was for any other venue. If put succinctly if not crassly: the audience is the bait and the contract is the hook. It’s that bad.

It’s actually simple to make it fair.

I’ve left the worst of the legal clauses to the end of this story, for the sake of readability. Some have Ross’s comments attached; any emphasis and [comments in bold] are from Burners.Me. Read the whole contract here.

RECIPIENT RESPONSIBILITIES
1.1. Integrity is the cornerstone of responsibility for every Recipient receiving an Honorarium Grant. This Agreement sets a base level expectation of responsibility for Recipient, and Burning Man expects that Recipient will adopt integrity as his or her modus operandi. Recipient is considered accountable for every aspect of the Art and shall serve as Art Project Lead.

2.3. Recipient will also furnish one or more high-resolution Art Image(s) or drawing both as a digital file as well as a printout, to be used by Burning Man to help inform and promote the Art, both before and after the Event. The Art shall be deemed approved upon Recipient and Burning Man’s dated signatures on this Agreement. (This is fine except, the question is what happens after the event. Many artists feel abused by giving up all rights on a partial grant to art before final payment is even made. Most grants are not fully settled until November or as late as January. Really,… that late.)

2.4. Any materials prepared and submitted to Burning Man, including the Art Plans, maquettes, drawings, and models, may be retained permanently by Burning Man for possible exhibition and other uses. (This silliness is in direct conflict with the submission text that says you get everything back. This whole thing should come out. What I don’t get is they just demand it rather than requesting temporary use or to pay for it…)