Burning Man Law

This month, Stuart Banner's book came out, covering courts' treatment of baseball, exempting it from the antitrust law. Reading an article about this book, I sought of another cultural phenomena, the Burning Man festival, and decided to take a look, what impact the festival makes on shaping courts' decisions, what constitutes the Burning Man law. I found six cases, which contributed to a variety of rules.

The cases and the affected rules are:

Reed v. United States DOI, 231 F.3d 501 (9th Cir. Cal. 2000). Held that the Bureau of Land Management may not be found negligent for someone's injuries sustained at the event (a car ran over the plaintiff, while he slept in his tent), and is not required to conduct 24-hour monitoring. An earlier citation for the case: Reed v. Avis Rent-A-Car, 29 F. Supp. 2d 1121 (N.D. Cal. 1998).

The same accident was covered from another angle, in Hudson v. Ignacio, 117 Nev. 387, 390 (Nev. 2001), which made its way up to Nevada Supreme Court. Hudson was the driver, who, while under influence from "controlled substances," drove his car over three tents, injuring as many people. The discussion was about requirements of the Due Process in enhancing sentencing, especially for prior convictions, and in presence of ineffective assistance of counsel at the appeal's level. The court also discussed, the scope of requisite knowledge in entering into a guilty plea. Court accepted Hudson's arguments and the case was remanded, allowing Hudson to withdraw his pleas.

A consequent lawsuit by the trustee, Thorpe v. Reed, 211 Cal. App. 4th 1381 (Cal. App. 6th Dist. 2012), reports that the Reed case was settled for $815,000, and also that the injured got into another car accident (with no relation to Burning Man) three years later, in 1999. The case itself was over the issue, whether a trustee to a trust with a predetermined compensation amount may claim a higher pay. The court ruled that "[w]here an instrument by which a trust is created fixes the compensation of the trustees they cannot claim a larger sum. They are entitled to the amount specified and no more."

Law v. Harvey, 2007 U.S. Dist. LEXIS 78398, 2-3 (N.D. Cal. Oct. 11, 2007). One of the Burning Man founders, John Law, sought to compel cancellation of Burning Man trademarks. The court sided with the defendants, denying cancellation. Decision contains a narrative of how the BM entity structure was created and evolved.

Beninati v. Black Rock City, LLC, 175 Cal. App. 4th 650 (Cal. App. 1st Dist. 2009). A participant sued after walking too far, too close to the Burning Man's burn and tripping on a cable. The case contributed to the development of the doctrine of primary assumption of risk. Held, organizers owed no duty of care to the attendee to prevent him from injuries he sustained from participating in the event. Beninati is a cited authority on the subject of primary assumption, its popularity continues to grow.

Cheffins v. Stewart, 2011 U.S. Dist. LEXIS 5947 (D. Nev. Jan. 20, 2011). Decision discussed applicability of protection of the artist's rights under the Visual Artists Rights Act ("VARA"), if the subject work of art is a "mutant vehicle." The case covered a famous case of burning "La Contessa," an artistic embodiment of a Spanish Galleon, built atop of an old school bus. The court held La Contessa to be a sculpture, to be a work of art not created for hire, but, held it to remain an "applied" work of art, since it had at least two utilitarian functions: to move and transport people, and to serve as a performance stage. For that reason, the plaintiffs were denied protection under VARA.

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