Magicians and their ideas have come to occupy an area known as IP’s “negative space,” an area where certain creative endeavors lack access to traditional IP protections. ((Jacob Loshin, Secrets Revealed: Protecting Magicians’ Intellectual Property Without Law, in Law and Magic: A Collection of Essays 123 (Christine A. Corcos ed., 2010).)) Scholars have identified other elements that operate in this space including furniture designs, tattoos, computer databases, and hairstyles, among others. ((Kal Raustiala; Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 Va. L. Rev. 1768, 1769-1772 (2006).)) Legal scholars can gain valuable insights from the dynamics of low-IP industries. ((Loshin, supra note 1.)) For example, scholars have studied industries such as the fashion industry and culinary industry, both of which are areas where innovation appears to flourish in the absence of strong IP protection. ((Id. at 2.)) In Secrets Revealed: How Magicians Protect Intellectual Property Without Law, Jacob Loshin argues that magic is similar in that innovation seems to thrive despite the lack of legal protection. ((Id.)) He examines the magic community and the innovation dynamics at play and finds that magicians’ solution is different from other industries. The magic community has developed “a unique set of informal norms and sanctions for violators,” which serve to protect ideas. Loshin concludes that “in the magic community, innovation does in fact need intellectual property. But it does not necessarily need intellectual property law.” ((Id. at 3.))
This post will summarize the application of intellectual property law to magic and the norm-based system magicians rely on in the absence of legal protections. This summary will largely rely on the aforementioned work by Loshin, which despite being more than ten years old, is still largely an accurate depiction. Finally, there have been some recent instances of certain magicians with substantial financial resources actually litigating in an effort to protect their intellectual property. The most interesting of these cases, Teller v. Dogge,involved Teller (half of the famed duo Penn & Teller). A discussion of that case and its potentially significant implications for copyright law will conclude this post.
The world of magic benefits from the ability to share and develop ideas, but is also threatened by theft and exposure. There are several traditional areas of IP law where one might search for protection of these ideas; however, all of them fail to adequately safeguard magicians’ intellectual property.
The limitations of copyright law long rendered it relatively unhelpful to magicians. However, recent developments have suggested that the scope of copyright protections might reach magic in certain circumstances. “Copyrights protect the expression of the idea, but do not protect the underlying concept.” ((Sara J. Crasson, The Limited Protections of Intellectual Property Law for the Variety Arts: Protecting Zacchini, Houdini, and Cirque Du Soleil, 19 Vill. Sports & Ent. L.J. 73, 83 (2012).)) While the federal Copyright Act of 1976 offers protection original “dramatic” and “choreographic” works, copyright is subject to the requirement that the works be “fixed in [a] tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated.” ((17 U.S.C. § 102(a) (2012).)) Therefore, magicians can utilize copyright law to copyright scripts or video recordings of their performance, although they are not able to copyright their live performance. ((Loshin, supra note 1, at 19.))
However, the most significant limitation of copyright law, as noted by Loshin, is that magic tricks themselves cannot be copyrighted. ((Id.)) Consequently, magicians can copyright a specific written description of an original method, which could not be lawfully reproduced, but they cannot copyright the methods themselves. ((Id.)) The law makes clear that copyright protection does not extend to “any idea, process, system, method of operation, concept, principle, or discovery regardless of the form in which it is described, explained, illustrated, or embodied.” ((Id. at 20.))
While the Copyright Act contains no express provision protecting magic secrets, it may not be completely without use to magicians, as the discussion of Teller will make clear. The Act does “expressly protect certain elements, or parts, of an illusion.” ((Sydney Beckman, A Rose by Any Other Name: How an Illusionist Used Copyright Law as a Patent, 14 J. Marshall Rev. Intell. Prop. L. 357, 365 (2015).))
Whereas copyright protection does not apply to ideas and methods, such protection has traditionally been available through patent law. Indeed, beginning in the nineteenth century, magicians began to successfully obtain patents for their inventions. ((Loshin, supra note 1, at 20.)) In 1923, for example, the famous magician Horace Goldin patented his effect “Sawing a Woman in Half,” the patent for which was entitled “Illusion Device.” ((Janna Brancolini, Abracadabra! – Why Copyright Protection For Magic Is Not Just An Illusion, 33 Loy. L.A. Ent. L. Rev. 103, 115 (2013).)) There are even rare recent examples of high-profile magicians’ ideas being patented, such as David Copperfield’s “Flying” illusion. The illusion was conceived by John Gaughan, who filed the patent for his “Levitation Apparatus” against Copperfield’s wishes. ((John Gaughan, Levitation Apparatus, U.S. Patent No. 5,354,238.))
This practice, while initially popular, presents an obvious shortcoming of the application of patent law to magic: to gain patent protection for their methods, magicians have to reveal them. ((Loshin, supra note 1, at 20.)) This is problematic for multiple reasons, not the least of which is that it basically defeats the purpose of seeking the protection in the first place. Another problem was demonstrated in the case of Goldin’s “Sawing a Woman in Half,” when Goldin sued the cigarette company R.J. Reynolds alleging “unfair competition” for the exposure of the patented illusion in tobacco advertisements. The district court promptly dismissed the suit, explaining that Goldin’s patent “is a clear and detailed expose of the secret to the public by the plaintiff himself. Anyone who cares to can rightfully and lawfully procure a copy of said patent, containing a full detailed and diagrammed explanation of the trick.” ((Id. at 21.))
As Loshin mentions, “some nineteenth century magicians might have tried to obscure their secrets by offering vague descriptions in their patent papers.” ((Id.)) This attempt would fail under modern patent law, however; it would make the patent unenforceable. ((Id.)) Stringent federal rules require “a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains . . . to make and use” the invention.” ((Id.))
Trade Secret Law
While trade secret law once appeared to be a promising venue for offering legal protections to the magic community—in 1922 Horace Goldin even managed to block a film company from exposing his illusion using an “unfair competition” claim (( Id. at 22.))—modern trade secret law does not take nearly as broad a view. According to the Uniform Trade Secrets Act, liability only attaches to violators who use “improper means,” defined as either outright theft or the breach of a “duty to maintain secrecy.” ((See Uniform Trade Secrets Act § 1(1) (1985).)) Such a duty can be created through contract, and magicians have successfully utilized confidentiality agreements (with assistants working on their show, for example) to protect proprietary secrets. ((Loshin, supra note 1, at 23.)) However, not reached are the common occasions where a secret is copied or exposed through one’s own discovery of the method, rather than any breach of duty. The Restatement of Unfair Competition states that “independent discovery and analysis of publicly available products or information” do not qualify as “improper means of acquisition.” ((Restatement (Third) of Unfair Competition § 43 (Am. Bar Ass’n. 1995).))
Furthermore, trade secret law requires that the holder of the secret make “reasonable efforts to maintain secrecy.” ((See Uniform Trade Secrets Act § 1(4)(ii) (1985).)) This poses an obvious problem for magicians, since most secrets have been disclosed to the industry through publication in books or other media, or at least shared informally. Such exposure generally means that those secrets are not entitled to protection. ((Loshin, supra note 1, at 24.)) Loshin provides a theoretical reason for the difficulty in applying trade secret law to magic, which “stems from the traditional conception of trade secret law as a means of incentivizing innovators by giving them a competitive advantage over their direct competitors in the industry.” ((Id.)) Magic, he notes, is different because “the threat of exposure results primarily from competition by industry outsiders, not by insiders.” ((Id.)) Thus, giving up magic secrets to fellow magicians—in contrast to “laymen”—“does not void the intention to keep something secret.” ((Id. at 25.)) It is also uncertain how the law should be tasked with determining who is an insider and who is an outsider in this context.
Due to the challenges and expense involved with seeking legal protections of their ideas, the majority of magicians have resorted to alternative means of creating and enforcing intellectual property rights. Magicians have “developed a fairly effective informal, norm-based IP regime which limits access, establishes use and exposure norms, and enforces violations—all outside the purview of the law.” ((Id. at 26.)) Practitioners in the field are expected to adhere to a widely understood—albeit unstandardized—code of ethics. ((Brancolini, supra note 15, at 118.)) There also exist several informal norms, governing exposure of magic secrets as well as the attribution of credit to inventors and innovators. ((Loshin, supra note 1, at 29.)) For example, it is commonly accepted that the first person to publish (or perform) an idea gets credit for its invention; other magicians are free to publish improvements and variations of ideas, provided they acknowledge and credit the original. ((Id.))
While these internal regulations often provide adequate protection, they often fall short. Theft of ideas is still extremely widespread in the magic community. A 2014 article describes the “Honor Code’s Failings” in magic, noting that “some of the best inventors in the field can no longer support themselves by creating and licensing equipment for new tricks.” ((Brancolini, supra note 15, at 120.)) Additionally, such codes do not protect against third party outsiders with an interest in exposing trade secrets. ((Id.)) One high-profile example of this occurred in the late 1990s, when Fox aired a number of specials with a “masked magician” exposing multiple illusions.
Teller v. Dogge:
Magic is not an enumerated category of work expressly eligible for copyright protection. Nevertheless, legal scholars and practitioners have theorized, prior to the Teller case, that magic is protectable under the categories of pantomime and/or choreography. ((Id. at 105.)) The Copyright Act does not actually define “choreography” or “pantomime”; the terms are defined in the “Compendium of Copyright Office Practices,” which provides guidance but is not legally binding. ((Id. at 108-109.))
The illusion in question in the Teller case is called “Shadows” and has featured in Teller’s act for over three decades. ((Teller v. Dogge, 8 F. Supp. 3d 1228, 1231 (D. Nev. 2014).)) The illusion was described in a 2015 law review article as follows:
A single red rose gently rests in a vase that sits upon a tall thin pedestal. In front of the vase a narrow cone of light drapes over the rose casting the flower’s shadow upon a page of white supported by an easel. A menacing figure slowly approaches wielding a sharp knife. But it is not the bloom he approaches — it is the shadow of the rose. Slowly, methodically, the figure cuts a small shadowy branch supporting leaves from the stem. Although the evildoer is nowhere near the actual rose, the real branch falls from the real rose. Another cut made into the shadows, another real branch falls. Then, as though the slow methodical torture of the delicate flower has not been enough, the figure slowly inserts the knife into the middle of the shadow of the rose itself. One by one each petal of the real rose breaks free from its home and flutters to the ground. Finally, with the last twist of the blade, the sole remaining petal is dislodged from its safety and left to fall to the floor. ((Beckman, supra note 13, at 358.))
In 1983, Teller registered a copyright for the performance of “Shadows” in the form of a pantomime or dramatic work; the registration states that Teller began performing the trick in 1976, and describes the action of the performance in great detail. ((Teller, 8 F. Supp. 3d at 1231.)) In 2012, a Dutch magician named Gerard Dogge attempted to market his own version of Teller’s illusion, which he titled “The Rose and Her Shadow.” ((Id.)) The complaint alleges that Dogge uploaded two videos to YouTube, in which he performed his version of the trick along with an offer to sell the props and instructions for approximately $3,000. ((Beckman, supra note 13, at 368.))
After unsuccessfully attempting to settle the dispute, Teller brought a lawsuit against Dogge on April 11, 2012 for copyright infringement and unfair competition. ((See Teller, 8 F. Supp. 3d 1228.)) The lawsuit addresses two acts allegedly committed by Dogge: his performance of the trick that he uploaded to YouTube and his replication of the methodology used to perform it. ((Beckman, supra note 13, at 367-368.)) According to a document from the case, Teller sought to recover $57,906.95 in costs and $931,661.65 in attorney’s fees for a grand total of $989,568.60. ((Order at 11, Sept. 30, 2014 Teller v. Dogge, Case No. 2:12-cv-00591 Document 233.)) The court granted summary judgment for Teller on the issue of infringement, holding that Teller had a valid copyright in “Shadows” and the Defendant infringed on that right. ((Beckman, supra note 13, at 369.)) After a review of the supporting documentation, the court found the requested costs and attorney’s fees “reasonable” and awarded damages totaling $15,000. ((Id.))
The Supreme Court has held that to establish a copyright infringement claim, “two elements must be proven: (1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original.” ((Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).)) The second prong is typically satisfied by showing that the infringing work is “substantially similar in [its] protected elements.” ((Metcalf v. Bochco, 294 F.3d 1069, 1072 (9th Cir. 2002).)) In Teller, although the two performances had different endings, the court considered those differences to be “inconsequential compared to the overwhelming number of significant and subtle similarities between these two works,” concluding that they were “substantially similar.” ((Teller, 8 F. Supp. 3d at 1236.))
One of Dogge’s arguments was an attempt to persuade the court that his trick could not be in violation of copyright law because the methods of the two tricks were different. ((Id.)) The court, however, did not consider that distinction relevant to a copyright claim because the method concerns aspects of the performance that “are not perceivable by the audience.” ((Id.)) To discern substantial similarity, “the court compares only the observable elements of the works in question.” ((Id.))
The court agreed that “magic tricks are not copyrightable,” but held that “Shadows” was a dramatic work and a pantomime that was entitled to copyright protection. ((Id. at 1233.)) Sydney Beckman argues in an article about the case that “in this case, the copyright was effectively used as a patent.” ((Beckman, supra note 13, at 371.)) He cites a particular portion of the courts holding that supports this point: “The mere fact that a dramatic work or pantomime includes a magic trick, or even that a particular illusion is its central feature does not render it devoid of copyright protection.” ((Teller, 8 F. Supp. 3d at 1233.)) This analysis has significant implications; as Beckman puts it, “when a magic trick is the effect and the effect is the trick . . . then copyright protection effectively protects the underlying method.” ((Beckman, supra note 13, at 371.)) In this case, Teller “protected with a copyright that which only a patent can legally protect.” ((Id. at 372.))
Latest posts by Cody Fisher (see all)
- South Dakota v. Wayfair: E-commerce Now Fair Game for State Sales Taxes - April 26, 2019
- Keeping Secrets: How Magicians Protect Their Ideas - February 23, 2019