Dana has a law degree, and I haven't disagreed with anything she said.

I also answered your question and don't see the point in repeating myself.

Right which means you never corrected anyone with a law degree.

Danny Kazam seems to forget that I have a law degree as well.

Are you referring to this?

Yea that was sort of my point. I don't mean only on this thread but when he flat out said "the guy with the law degree is wrong" in another thread.

I am asking him actual questions but for a guy not wanting to argue it seems to be what he is doing.

Well then, let's settle it. Are these not reasons for non enforceable contracts?

Duress, lack of capacity, undue influence misrepresentation, non disclosure, unconscionability, public policy, etc.

That seems to be the only thing I questioned on this thread. But in reviewing the thread I noticed some one who actually not only questioned what an attorney said, but said the person was wrong. May there be some confusion as to who you are reffering to?

And perhaps you don't get it but I'm not here to argue. Please stop badgering me as it's becoming annoying.

Exactly what "duress" would one be under in signing an agreement not to perform a routine on TV?

My original post posited the situation of a person buying a trick and then finding out after the fact that there were a bunch of restrictions placed on use. Different fact situations have different legal outcomes. But there are some situations where there's nothing you as a creator can do to restrict how your trick is used, whether disclosed fully up front or not.

One question I ask myself is, everything else being equal, do I have a different opinion if the trick costs $20 than I do if it cost $10,000? If you pay $10,000 for a trick, does that give you a higher expectation of performance rights than if you pay $20 for it? In other words, does price in itself confer certain rights because of the value or expectations connected with such a high price?

What are the situations in which a creator voices up all such rights?

Going back to the OP:

Personally, I would think the person is filing a frivolous lawsuit, either to get attention... or to get attention.

Considering that most (the vast majority of?) magic tricks and illusions are of very low economic value, the cost to both sides of pursuing a lawsuit, IMHO, is ridiculous. In the end, who wins? The lawyers.

That being said, I also think there are two different scenarios. One, I create a trick or illusion that I do not publish or sell for several years. It's one of my signature pieces. Then I sell it to another magician, who really wants it, for a large sum. I would think he or she would also want to keep it exclusive, and we could do a gentleman's agreement or a formal contract. But, once I sell it, it's his, and I would have to prove "real" damages if I were to sue him, or sue him only for breach of contract.

If I didn't want someone else to have the thing, I just wouldn't sell it. Of course, that's 'way too easy.

The other scenario is that I make a trick or illusion and put it on the market (which I've already done). If I'm selling it, I think it's ludicrous to tell the buyer he can't do it on TV or whatever. Magic is a performance art, so what's the point of buying a trick if you can't perform it?

Sure, I could go the way of theatrical publishers and DVD movies and say, you're buying a license to use this under certain conditions; as Bob mentioned, you can buy a copyrighted play or musical script just to read it, but it's been long established that if you want to perform it, you have to license it and pay a fee. But then I get into the whole mess of whether you can license a magic trick method, which appears to have already been negated above.

Geez, we buy patented products all the time, and we can re-sell them if we want. And it's not illegal to re-sell a book or recording. So it comes back to me: what the heck am I hoping to accomplish by restricting performance rights?

I say if you buy an effect you have all the right in the world to perform it exactly word for word as the creator. I also say this is a right you should pass on and come up with your own style of presentation.

Good magic to all,


Eric

Gosh Dana see what you started? Lol

This is where I think we tend to get hung up nowadays.

Until recently, material in magic books and magazines was published so other people could use it. Tarbell, Hugard, and many others did not publish all that material just so their name would be on it: they intended for people to use it. If the patter came with it, then you could use it or revise it or ignore it. You could also modify the apparatus, the method, or whatever else you wanted. The authors' gain came from the creative credit as much as from the sale of the books.

Same for props and equipment. You bought it, you owned it. Just like with the books, the originator's name was as much a part of the marketing as the effect itself.

If you didn't want someone else to perform your effect, you didn't publish it or sell it.

I guess I just don't understand why someone would publish or sell a trick or magic book and then expect to sell a license to perform it. Actually, I could understand it. Seems much simpler, businesswise, to just raise the price to cover performance rights, if that's where you want to go.

If I sell an effect with bare bones generic patter only, you have the right to perform it, use the patter I supplied, or write your own.

I don't believe that gives you permission to come to my show, watch me perform the routine with my unique script -that was never sold- and then copy that complete script "word for word."

No one is saying that.

So you don't understand how someone could sell a script to a play, and then a second fee is required to be able to perform said play?

I still think Tom had the right idea of not taking as much as you can simply because you can. The whole idea of "my rights" and what you are entitled to and such seems as if it can be destructive.

I mean geeze if you sign an agreement and agree to the spirit of that agreement from the start why would you even think of legal action of any sort? What does it say about you?

Reminds me of a joke.

A boy goes into a candy store and notices a barrel filled with peanuts. The boy asks, "How much for the peanuts?"

The store owner replied, " All you want for a buck."

The boy reached into his pocket, pulled out some change, placed it on the counter and said, " I'll take two bucks worth please."

I'll admit that as a neophyte magician in my preteen years I was locked to the "Supplied Patter" that came with most effects. Hopefully as we grow and advance we find our own voice for our act but it's not required. Some people write their own music and create their own sound. Others are happy playing in a cover band and creating wonderful recreations of what other artists have originated. Because most of my magical learning came from books, I just remember there being the effect, the set-up, the method (or secret) and then the routine with the patter. In those days I suppose it was to help you picture the routine ass it would sound in front of the audience. I even remember some of the creators encouraging us to create our own patter and routine. I never remember a book which restricted the use of existing patter for an effect or held that back in some way. It's just a very different time today.

Case in point, the two times I have pursued rights above and beyond what was granted, I was told, "Thanks for asking, all I was trying to protect was someone famous taking my work on national TV and becoming known for it. I have no problem with you doing this on your local television station, and again thanks for asking." In the end I think you will find most creators are quite reasonable and very approachable. Sadly reaching out to them is getting much less common.

In every case but one (including publication requests) it has always been a case of simply wanting the respect of being asked. Maybe that is old school.