Welcome and Hello
Thank you, my undoubtedly physically attractive friend, for visiting Mentalism and Magic! I hope you enjoy it and find it as familiar and comfortable as a pair of oft-used and well-loved slippers.
But seriously, I hope you can find your way around and I truly hope the things I post will be helpful and enlightening - to some extent. And please, if you have something to say, comment here, or talk about it over in the 'discussion | ask a question' page. Feel free to ask me anything you like! And as you continue to visit here, you may recognize how freely I use exclamation marks! Well, know this, every time I put one down, I mean it.
Come back often, as new content - mentalist bios, tricks, DIY props and gimmicks, walkthroughs, discussions, and more - are added.
I'm glad we met, and I truly hope you come back soon.
-Ethan
But seriously, I hope you can find your way around and I truly hope the things I post will be helpful and enlightening - to some extent. And please, if you have something to say, comment here, or talk about it over in the 'discussion | ask a question' page. Feel free to ask me anything you like! And as you continue to visit here, you may recognize how freely I use exclamation marks! Well, know this, every time I put one down, I mean it.
Come back often, as new content - mentalist bios, tricks, DIY props and gimmicks, walkthroughs, discussions, and more - are added.
I'm glad we met, and I truly hope you come back soon.
-Ethan
legalities and ethics
My thoughts:
It is important to respect the rights and work of other magicians. (Obviously)
I have spent hours over the past several months researching the (United States) laws surrounding the art and performance of magic.
More important to me than the legalities though, are the ethics of magicians toward eachother.
I found out as I researched that, personally, knowing the laws surrounding magic doesn’t have much of an influence on me. I don’t exactly know why. I think part of it is that the laws are so abstract and I know that they cannot really be enforced. It is very difficult (as you’ll see later) to actually take any legal action to protect a trick or idea (though it has been done). Yet I still have a great aversion to ripping off someone else’s material – be they props, dialogue, presentation, or anything else. And so do many others.
And the reason is because I morally feel it’s wrong. The ethical issues have far more of an impact on me than the technical, legal ones. Laws are hard and fast and solid and unmoving, and therefor very easy to slip and crawl around. But morals are not quantifiable. They cannot just simply be avoided by sneaky planning – or even by coincidence! And that, I believe, is what has, and will continue, to protect magic. However, sadl, there has been enough violation of that ethical code that laws have needed to be made.
And as far as the (US) laws go, what I discovered surprised me:
You cannot copyright a magic trick.
Now, there are a few other things one can do to ensure some sort of protection for a trick – although very few take advantage of these. But even these offer little true protection.
I bring this up to ensure this website remains not only legal, but ethical. Because there are so few hard and fast “laws” protecting the magical arts, the community must rely almost solely on the ethical values of those in the community – and those outside it.
I mentioned earlier that there are several things one can do to attempt to protect a trick – or at least some part of it – All of which fall under the umbrella of ‘Intellectual Property’. (All of these laws are United States laws.) They are:
COPYRIGHT: The problem with copyright is that you can’t copyright an idea. Under the 1976 ‘Federal Copyright Act’ a copyright can cover “dramatic works” and “choreographic works”, but not magic tricks.
The clever people among us however, can still make this law work for them. Teller, of Penn and Teller is one of those people. He recently got into quite the legal battle with a Dutch performer who was selling a version of the “Shadows” routine he had invented (and which choreography he had wisely copyrighted). Teller sued him, but not for revealing the secret. He sued him for copying the choreography! Now, with that routine, the entire act is choreography, so a copyright worked nicely (albeit, there was a long, tedious legal battle. Although, I’m sure some of it was due to loopholes in international copyright laws though. And that is a load of nonsense I don’t want to get into.)
There is a way to get around this though. It is called the Merger Doctrine. It allows for a copyright to be modified or not enforced if the choreography that has been copyrighted is the only way to perform the trick.
Rick Lax gives a good example of this in his fantastic article on the problems with the lack of protecting laws. In a nutshell, he says: imagine I invent a Magic Jacket trick. I spend years developing it. The trick is performed by showing the audience both sides of the jacket, as well as the back, the front and the hood, to show there is nothing tricky about this trick jacket. Then, I put it on, slip my arms behind my back, and magically it unzips itself.
This jacket has dozens of wires, batteries, latches, etc. that make it work. But the copyright office only allows the choreography – the bit about showing both sides of the jacket and putting the arms behind the back – to be copyrighted.
Now another performer starts performing the same trick everywhere. In a lawsuit he can invoke the Merger Doctrine, saying that the only way the trick can be performed is by showing both sides of the jacket, otherwise the effect is useless because the audience can’t be convinced of the average-ness, the normal-ness, of the jacket, and the effect loses all potency.
This argument, Lax says, sadly, would probably hold up in court
So, basically, unless your trick is entirely choreography (as ‘Shadows’ is) a copyright on a magic trick will not do you much good.
PATENT: Again, the problem with a patent is that you can’t patent an idea. Patents apply to products or processes.
Now, when something is under patent, it does grant exclusive rights to the patent holder to make, use, produce, sell, or import the product without their permission. The down side is that a patent expires after 14 years and cannot be renewed. Once a patent expires, it is in the public domain and is now, as they say in the scientific community, free game.
A patent is quite a bit more useful to a magician than a copyright is. For example, the mechanism David Copperfield uses in his illusion “Flight” grants him exclusive rights to use it. And if someone else wants to do the trick, they must alter the design substantially. (It is a myth that a patent can be negated by simply changing a few minor things.) The problem with patents though, is that in order to receive a patent, you must give detailed instructions on how it works and how to use it. These are accessible to anyone, muggles included. And so, as Rick Lax put it, “Patents don’t protect secrets; they reveal them.” Now while this is true, and does allow for people to see how the contraption works and try to design their own variations, the question is raised: does the public really know or care? (BUT doesn't people performing your same tricks also fuel innovation in the industry, rather than stagnation? -- Discuss)
And though a patent can help protect a prop or the mechanics of a trick, often times the same effect can be achieved using completely different means. And so then the discussion can change from the mechanics of a trick to the aesthetics of a trick. If someone does a trick completely differently than you, but it looks exactly the same, even down to the music, is that legal? Should it be allowed? And what is more important, protecting a design or protecting an audience’s experience? Well, with the Trade Dress Law, the aesthetics can also be protected.
TRADE DRESS LAW: The Trade Dress Law basically protects the characteristic and distinctive look and feel of another magician’s show.
It was originally drafted to protect the individual look of packaging and products, but it can be applied to a magicians show as well. David Copperfield (he’s a guy who does a few magic tricks, if you’re not familiar) once sued a French man for copying his flying illusion. This lawsuit not only dealt with the patent he had on the design of the mechanism, but also with the look of the act. This man copied the look of the backdrop, the color of the lighting, the song, and even parts of the dialogue. Copperfield won, although he did have this to say:
“French law protects artists much better than U.S. law,” Copperfield says. “In France, I sued someone who stole my Flying illusion, and I was successful.”
He later said
“I believe it’s possible to achieve justice in the American court system, but it takes a lot of time, energy, and money. It’s not always worth focusing important bandwidth on that when you can apply the same time and energy to creating something new and different.”
TRADE SECRET LAW: This is a law that prevents someone, who was given important trade information in confidence, from sharing it.
So for example, a stagehand who is let in on the secrets of several tricks - due to the need for offstage help and setup I’m sure – cannot then go and tell another magician, or even a muggle, how any of the effects are done. This law does not, however, prevent someone who is watching the show to deduce how the trick was done and perform it themselves.
-----------------
But please, lets not rely on these very meager laws to keep us honest.
I bring all this up not (only) to flaunt my (subpar) knowledge on the technicalities of magical performance law, but to, instead, help us all develop some kind of understanding of the laws that protect – and don’t protect –our art and plead for all of us to continue to be respectful to the work, (noun) and work (verb) of our fellow magicians. And with this we can all be more able to discuss and perform magic more fully; and adapt and create and innovate rather than sneak and steal and copy.
-Ethan Williams
(If you happen to find a particular post or comment inappropriate in some way, there is a convenient button on the HOME page you can click to contact me and it will be revised or removed.)
It is important to respect the rights and work of other magicians. (Obviously)
I have spent hours over the past several months researching the (United States) laws surrounding the art and performance of magic.
More important to me than the legalities though, are the ethics of magicians toward eachother.
I found out as I researched that, personally, knowing the laws surrounding magic doesn’t have much of an influence on me. I don’t exactly know why. I think part of it is that the laws are so abstract and I know that they cannot really be enforced. It is very difficult (as you’ll see later) to actually take any legal action to protect a trick or idea (though it has been done). Yet I still have a great aversion to ripping off someone else’s material – be they props, dialogue, presentation, or anything else. And so do many others.
And the reason is because I morally feel it’s wrong. The ethical issues have far more of an impact on me than the technical, legal ones. Laws are hard and fast and solid and unmoving, and therefor very easy to slip and crawl around. But morals are not quantifiable. They cannot just simply be avoided by sneaky planning – or even by coincidence! And that, I believe, is what has, and will continue, to protect magic. However, sadl, there has been enough violation of that ethical code that laws have needed to be made.
And as far as the (US) laws go, what I discovered surprised me:
You cannot copyright a magic trick.
Now, there are a few other things one can do to ensure some sort of protection for a trick – although very few take advantage of these. But even these offer little true protection.
I bring this up to ensure this website remains not only legal, but ethical. Because there are so few hard and fast “laws” protecting the magical arts, the community must rely almost solely on the ethical values of those in the community – and those outside it.
I mentioned earlier that there are several things one can do to attempt to protect a trick – or at least some part of it – All of which fall under the umbrella of ‘Intellectual Property’. (All of these laws are United States laws.) They are:
COPYRIGHT: The problem with copyright is that you can’t copyright an idea. Under the 1976 ‘Federal Copyright Act’ a copyright can cover “dramatic works” and “choreographic works”, but not magic tricks.
The clever people among us however, can still make this law work for them. Teller, of Penn and Teller is one of those people. He recently got into quite the legal battle with a Dutch performer who was selling a version of the “Shadows” routine he had invented (and which choreography he had wisely copyrighted). Teller sued him, but not for revealing the secret. He sued him for copying the choreography! Now, with that routine, the entire act is choreography, so a copyright worked nicely (albeit, there was a long, tedious legal battle. Although, I’m sure some of it was due to loopholes in international copyright laws though. And that is a load of nonsense I don’t want to get into.)
There is a way to get around this though. It is called the Merger Doctrine. It allows for a copyright to be modified or not enforced if the choreography that has been copyrighted is the only way to perform the trick.
Rick Lax gives a good example of this in his fantastic article on the problems with the lack of protecting laws. In a nutshell, he says: imagine I invent a Magic Jacket trick. I spend years developing it. The trick is performed by showing the audience both sides of the jacket, as well as the back, the front and the hood, to show there is nothing tricky about this trick jacket. Then, I put it on, slip my arms behind my back, and magically it unzips itself.
This jacket has dozens of wires, batteries, latches, etc. that make it work. But the copyright office only allows the choreography – the bit about showing both sides of the jacket and putting the arms behind the back – to be copyrighted.
Now another performer starts performing the same trick everywhere. In a lawsuit he can invoke the Merger Doctrine, saying that the only way the trick can be performed is by showing both sides of the jacket, otherwise the effect is useless because the audience can’t be convinced of the average-ness, the normal-ness, of the jacket, and the effect loses all potency.
This argument, Lax says, sadly, would probably hold up in court
So, basically, unless your trick is entirely choreography (as ‘Shadows’ is) a copyright on a magic trick will not do you much good.
PATENT: Again, the problem with a patent is that you can’t patent an idea. Patents apply to products or processes.
Now, when something is under patent, it does grant exclusive rights to the patent holder to make, use, produce, sell, or import the product without their permission. The down side is that a patent expires after 14 years and cannot be renewed. Once a patent expires, it is in the public domain and is now, as they say in the scientific community, free game.
A patent is quite a bit more useful to a magician than a copyright is. For example, the mechanism David Copperfield uses in his illusion “Flight” grants him exclusive rights to use it. And if someone else wants to do the trick, they must alter the design substantially. (It is a myth that a patent can be negated by simply changing a few minor things.) The problem with patents though, is that in order to receive a patent, you must give detailed instructions on how it works and how to use it. These are accessible to anyone, muggles included. And so, as Rick Lax put it, “Patents don’t protect secrets; they reveal them.” Now while this is true, and does allow for people to see how the contraption works and try to design their own variations, the question is raised: does the public really know or care? (BUT doesn't people performing your same tricks also fuel innovation in the industry, rather than stagnation? -- Discuss)
And though a patent can help protect a prop or the mechanics of a trick, often times the same effect can be achieved using completely different means. And so then the discussion can change from the mechanics of a trick to the aesthetics of a trick. If someone does a trick completely differently than you, but it looks exactly the same, even down to the music, is that legal? Should it be allowed? And what is more important, protecting a design or protecting an audience’s experience? Well, with the Trade Dress Law, the aesthetics can also be protected.
TRADE DRESS LAW: The Trade Dress Law basically protects the characteristic and distinctive look and feel of another magician’s show.
It was originally drafted to protect the individual look of packaging and products, but it can be applied to a magicians show as well. David Copperfield (he’s a guy who does a few magic tricks, if you’re not familiar) once sued a French man for copying his flying illusion. This lawsuit not only dealt with the patent he had on the design of the mechanism, but also with the look of the act. This man copied the look of the backdrop, the color of the lighting, the song, and even parts of the dialogue. Copperfield won, although he did have this to say:
“French law protects artists much better than U.S. law,” Copperfield says. “In France, I sued someone who stole my Flying illusion, and I was successful.”
He later said
“I believe it’s possible to achieve justice in the American court system, but it takes a lot of time, energy, and money. It’s not always worth focusing important bandwidth on that when you can apply the same time and energy to creating something new and different.”
TRADE SECRET LAW: This is a law that prevents someone, who was given important trade information in confidence, from sharing it.
So for example, a stagehand who is let in on the secrets of several tricks - due to the need for offstage help and setup I’m sure – cannot then go and tell another magician, or even a muggle, how any of the effects are done. This law does not, however, prevent someone who is watching the show to deduce how the trick was done and perform it themselves.
-----------------
But please, lets not rely on these very meager laws to keep us honest.
I bring all this up not (only) to flaunt my (subpar) knowledge on the technicalities of magical performance law, but to, instead, help us all develop some kind of understanding of the laws that protect – and don’t protect –our art and plead for all of us to continue to be respectful to the work, (noun) and work (verb) of our fellow magicians. And with this we can all be more able to discuss and perform magic more fully; and adapt and create and innovate rather than sneak and steal and copy.
-Ethan Williams
(If you happen to find a particular post or comment inappropriate in some way, there is a convenient button on the HOME page you can click to contact me and it will be revised or removed.)
references:
Loshin, Jacob, Secrets Revealed: How Magicians Protect Intellectual Property without Law (July 25, 2007). Available at SSRN: http://ssrn.com/abstract=1005564 or http://dx.doi.org/10.2139/ssrn.1005564 (OR http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1005564&download=yes )
http://www.wired.com/2013/07/the-tricky-business-of-innovation-can-you-patent-a-magic-trick/
https://freedom-to-tinker.com/blog/felten/intellectual-property-and-magicians/
http://lpcprof.typepad.com/law_and_magic_blog/intellectual_property/
http://en.wikipedia.org/wiki/Trade_secret
http://www.themagiccafe.com/forums/viewtopic.php?topic=151965&forum=171
Loshin, Jacob, Secrets Revealed: How Magicians Protect Intellectual Property without Law (July 25, 2007). Available at SSRN: http://ssrn.com/abstract=1005564 or http://dx.doi.org/10.2139/ssrn.1005564 (OR http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1005564&download=yes )
http://www.wired.com/2013/07/the-tricky-business-of-innovation-can-you-patent-a-magic-trick/
https://freedom-to-tinker.com/blog/felten/intellectual-property-and-magicians/
http://lpcprof.typepad.com/law_and_magic_blog/intellectual_property/
http://en.wikipedia.org/wiki/Trade_secret
http://www.themagiccafe.com/forums/viewtopic.php?topic=151965&forum=171