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The Magic Cafe Forum Index » » From The Wizards Cave - by Bill Palmer » » Intellectual Property and Magic (1 Likes) Printer Friendly Version

Bill Palmer
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Well, the question of intellectual property (IP) and magic has reared its head again, and the need to unscramble certain misconceptions about the various ways magic might be protected has become very evident to me. I will attempt to unscramble as much of it as I can.

First of all, the disclaimer. I am not an attorney. I'm not an IP lawyer. I'm what one would call an educated layman. I own part of over 790 items that my father wrote, plus a dozen or so of my own. That's a lot of material. I am the third generation in a family of people involved in the publishing business in one way or another. I also own two trademarks.

So, where to begin?

There are two basic types of IP protection -- patent and copyright. Patents are used to protect mechanical devices, systems and the like. Trademarks fall under patent law. Copyrights are used to protect written matter, music, dance choreography, movies, photographs, sculptures, paintings, etc. -- basically things that are inside the artist's mind that can be expressed in a concrete form of some sort. Sometimes there is an apparent overlap. Integrated circuits are not patented, although the integrated circuit, itself was. Integrated circuits are made from photographs, so the photographs are copyrighted.

Why does this make a difference?

Well, the life of a patent is only 20 years, and is non-renewable. A copyright lasts (in most cases) for the lifetime of the author plus 95 years. Corporate copyrights have a different duration. Originally, copyrights were good for 28 years, renewable for another 28 years. This changed in 1976, and has been amended several times since then. Copyright law used to favor the publisher, but now it is more in favor of the artist. There are reasons for this, which I will discuss in a moment.

The difference in length of a patent vs. a copyright is due to an idea the founding fathers had. They wanted to encourage rapid technological development. So relatively short patents meant that people could profit from the initial salse of their work, then it would pass into the public domain, where all could use it freely. Copyrights were given longer duration so the creators of written and graphic work could profit as much as possible from their products.

Some have said that the long copyright durations actually discourage intellectual development. I disagree. In many ways, they encourage intellectual development. Some artists don't have an abundance of art in them. They will create at their own rate. If they are secure in the idea that their work will belong to them and their heirs for a while, they won't be pressured into turning out poor art.

Most artists create incessantly, anyway. They would create whether a copyright were 28 years or 280 years. It's what they do. The ones who think about their progeny create more material, if it is within their creative powers.

And you are more likely to create material, if you know that people can't simply walk off with it a few years after it is published.
"The Swatter"

Founder of CODBAMMC

My Chickasaw name is "Throws Money at Cups."

www.cupsandballsmuseum.com
Bill Palmer
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Eternal Order
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24136 Posts

Profile of Bill Palmer
So, what is the best way to protect your magical creations?

If you have an interesting gimmick, box, or system, you can patent it. Patent searches are expensive and patents are not cheap, either. You can copyright it, but all that is protected in a copyright is the actual wording, drawings, photographs, etc., that is, the graphical representations. You could make a video of it and copyright that, but it would not necessarily protect all the possible versions of the trick.

Here's the problem. You can't patent or copyright an idea. You can only protect specific manifestations of an idea or concept. Cartoon characters are protectable. They can be trademarked. Your own image can be trademarked. You just have to figure how to use it in a way consistent with trademark law.

Some armchair attorneys claim that all you need to do is make a few minor changes in a manuscript, and that is enough to get by the copyright law. That won't quite do it. The copyright law allows enough leeway in an interpretation of an original work that minor variations are still recognized as the original work. For example, Duke Ellington, Johnny Mercer and Billy Strayhorn wrote Satin Doll. If I play my own arrangement of it, and it is still recognizable as Satin Doll, then the law says that it's Satin Doll. End of story.

However, I could play something with a different chord progression that hinted at Satin Doll and it would not be the same tune. It's complicated, but it certainly is more than just changing a word here and there.

What does this mean to you as a person who creates magic? Well, you can publish a trick or a book and have legal protection for it. However, if someone else comes up with a similar item that works a different way, you may not be able to call their "creation" your trick.

In music, there are some specific tests that have evolved over the years. One is that the person who is accused of copying the piece must have access to the original. If it's a common tune, that is pretty easy to do. Another is that the new version must be very similar, if not identical, to the new piece. There have been attempts to codify this in terms of chord progressions, etc., but basically what it means is "if it sounds like Satin Doll, it's Satin Doll, even if the new composer called it "Velvet Puppet."

A couple of famous cases come to mind. One was the case of "Rum and Coca-Cola," which Morey Amsterdam and others claimed to have written. Lionel Belasco was certain that they had used a song of his which was in a different rhythm as the basis for it. Louie Nizer proved it in court and got Belasco a nice chunk of change. He found a copy of his tune in the library of the network Amsterdam worked for, showed that the chord progression fit Belasco's words better than Amstardam's and that was it.

Then there was the He's So Fine/My Sweet Lord case. A 1962 hit by the Chiffons was used (unconsciously) by George Harrison for his hit. There was no doubt that he had heard the song, and that his tune was virtually identical. He should have settled out of court. He didn't. He lost. He paid.

And there was the famous Dueling Banjos case. When the motion picture Deliverance came out, there was a famous scene where a mentally challenged kid and a guitarist traded musical licks with one another. Warner Brothers had mistakenly thought the song was in the public domain. When the record went gold, Arthur Smith showed up at Warner Brothers with his friend Don Reno, and asked for his money. They laughed at him. They didn't in court when he and Don played his tune "Mocking Banjos" for the judge. Arthur had the copyright papers in hand. The judge said, "It's the same song. Pay the man."

These are fairly overt cases of copyright infringement. In all three cases, the arrangements were very much different from the originals. So changing a little bit did not mitigate damages.

At the time these offenses occured, we were still under the old copyright system. The "shorter" copyrights did not cause the copyists to be more creative.
"The Swatter"

Founder of CODBAMMC

My Chickasaw name is "Throws Money at Cups."

www.cupsandballsmuseum.com
Bill Palmer
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Eternal Order
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24136 Posts

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So, how does this apply to protecting your own magic tricks?

Is patent the answer? Maybe, maybe not. Patents are expensive and the expire quickly. Some illusion builders are now licensing their systems. They have license agreements which mean that when you buy the illusion, you don't actually own it, you own the right to use it and maintain it, but the actual ownership of the illusion is the builder's. I don't think this has been tested in court, so whether it would or would not hold up is a moot point. But it's one approach.

Non-disclosure agreements are only as good as the honor of the people who sign them.

Patents are short -- twenty years -- and are non-renewable. (Design patents are shorter.) However, you can extend a patent to a certain degree by adding improvements. So the old version of your item falls into the public domain, but the new, improved one, which now renders the old one obsolete, will overshadow it. (Don't kid yourself, the old trick will still work and fool people.)

Some builders use the idea of "trade secrets" to protect their ideas. Again, this is only as good as the people who purchase the illusions.

Ultimately, the validity of any of this protection is decided by a judge or a jury, and that's why if you decide to patent something, you need to make sure it is done correctly, and, if you have to sue, that you have a really good attorney. You can't try the case yourself.

A friend of mine invented an illusion called "The Ring Escape." He patented it. A copyist down the road built it and changed the number of rings on the pole. It went to court. The inventor lost, because the judge felt that the number of rings changed the trick significantly. This was clearly a case of bad lawyering. A good lawyer knows the law. A great lawyer knows the judge.

IP lawyers must be certified to practice. At least, that is what I have been led to believe. However, there are a lot of judges that don't know beans about IP law, and if you draw one of those, look out! You may lose your case.

The patent on one of Copperfield's illusions will be expiring soon. Any guesses as to what it is?
"The Swatter"

Founder of CODBAMMC

My Chickasaw name is "Throws Money at Cups."

www.cupsandballsmuseum.com
Bill Palmer
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Eternal Order
Only Jonathan Townsend has more than
24136 Posts

Profile of Bill Palmer
The patent on Copperfield's "Flying" expires in about 8 years.

So here comes the dilemma. If you know anything about levitation methods, and you look up the patent papers, it becomes evident that there are many things therein that go back to previous methods. Only someone with the knowledge of John Gaughan could have come up with this method. Does this give other magicians the right to reverse engineer the method and perform it for profit?

No. It would be a violation of patent.

Would it be legal for a magician to come up with another way of producing exactly the same effect?

Yes.

Would it be ethical?

There's the rub. To the audience, if one levitation looks like another, it's the same trick, just like the musical examples in one of the above posts.

So, what would happen if this went to court? There is no way of telling. It could wind up being settled in favor of Gaughan. It could go the other way. It could result in a court order to keep the "reverse engineered" version off the stage until the case could be settled. In any case, the people who would profit by it would be the attorneys.

Part of the problem would be that Gaughan would have to prove damages -- lost income -- caused by the "infringer." And then there is the matter of access -- remember "access?" The infringer does have access to the original plans. They are on file at the patent office, and anyone who knows how, can access them.

In any case, it would be messy.

And this gets back to ethics.

The best way to protect a piece of your own magic is to get it into print -- hard copy, not cybercopy. Cybercopy is too easy to change. Hide it by publishing it. You can do this as a manuscript. You can send it to a magic magazine. If you send it to a magic magazine, chances are the editor will tell you where your trick came from, if there is any doubt about it. If not, someone else will later, after it's published. And the editor will regret the omission or error.

So, what does this mean about your original material?

Well, first, you need to make sure it's original. We see posts daily about "new" tricks that some neophyte has invented, which are very much like things that you can purchase at any magic store on-line. They put them up on the forum without checking to see if there is anything new in them.

Second, when you publish a trick, give credit, where credit is due. If your trick has an Elmsley count in it, you probably don't need to credit the late Alex Elmsley. Calling it the Elmsley count does that well enough. But if you have an uncommon move in it, ask permission from the originator, if he or she is still around. They may not want you tipping their work. It may be legal to do so, but it isn't ethical.

Sometimes, you need to find alternate methods of doing something. In my most recent publication, Final Curtain, by Borodin, there were a couple of items that the inventors did not want to give away, so we credited them, and gave alternate possibilities. A clever magician will figure out ways of doing them. It ain't rocket science!

Nothing in the code of ethics of any magical organization or in the law states that you can't build upon other people's material. Usually, all you have to do is to ask permission of people before you publish your variation of things or your use of their ideas.

Although we stand on the shoulders of giants, it isn't advisable to kick them in the face while we do it.
"The Swatter"

Founder of CODBAMMC

My Chickasaw name is "Throws Money at Cups."

www.cupsandballsmuseum.com
Bill Palmer
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Eternal Order
Only Jonathan Townsend has more than
24136 Posts

Profile of Bill Palmer
There is another aspect of this that has recently surfaced in the Food for Thought section of this forum. That is the assertion that sometime in the future, there will be no books. All information will be free for the asking on the internet or whatever passes for it at that time. This has been a favorite position of people who do not have any understanding of the complexity of the issue of intellectual property.

So, let me break this assertion down into its component parts. First, to a person who is in the publishing business, books can be a tremendously inefficient way of getting information from one person to another. Unless every word in the book is accurately indexed, which would make the book take up at least half again its original space, it isn't searchable except from the memory of the reader or by rapid scanning. That's not a very efficient way to do things. Books take up a lot of space. They can burn. While a library may not necessarily be a fire hazard, books can certainly contribute a lot of fuel. So can microfilms. But there are a tremendous number of books already in print, and they aren't just going to disappear.

And books do have a lot of advantages. You can take 50 books, and given enough space, spread them out on a table top and compare not only the words on each page, but also the way the printing was done, the way the paper was made and the way each was bound. An e-book has none of these characteristics, because there is no printing and no paper. Once a book is reduced to an e-book, it has lost a lot of its character. Also, books can be taken anywhere that there is a way of keeping them dry. You need no electricity to make a book operate. You need no computer to read them. There are still many, many places that have no electricity. There are some small communities in the US that have none. And there are many people who have no computer. Some of them have no plans to ever obtain one. It's hard to imagine it, but you can actually lead a full, productive life without having a computer.

But I don't think you can lead a full, productive life without something like books.

So, to the second part of the proposition -- sll information will be free for the asking on the internet or whatever passes for it at that time. The people who make this kind of statement have ignored a basic premise of copyright law. That is, that the original graphical expression of a person is his or her intellectual property under the law. That "person" may also be a corporation or other legal entity. Copyright is the means of protecting that property. That property is just as real as a hubcap or a house. The copyright gives the holder of said property the right to regulate its distribution and production.

So, if some giant corporation, such as Google, decides that they will start digitizing my intellectual property, I can demand that they cease and desist or I can ask for royalties. This has already taken place to a certain extent in the music industry with the advent of subscription music download sites.

If the publishing industry goes to a totally paperless format, my prediction is that the information will be downloadable for a fee, or it will be avaiable for a limited time for a fee. There are already movie download sites that operate on this basis. It costs about the same as renting a DVD, but less than purchasing one. And protection can be given to these documents that, in the case of rented documents, will cause them to lose access after a particular time and will keep them from being saved, so you can read your book over a period of a month or so, then it will disappear.

The publishing industry is not behind the curve on this. We have been anticipating it ever since Google tried to digitize the world a couple of years ago. We pointed out that to do so would be illegal. They had no inclination to fight the international copyright laws.

No matter what you think, there is no right to know. There is no right to information. There is no right to free access to everything, any more than there is a right for you or some other entity to have free access to my house, my car or my bank account.
"The Swatter"

Founder of CODBAMMC

My Chickasaw name is "Throws Money at Cups."

www.cupsandballsmuseum.com
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