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The Magic Cafe Forum Index » » Right or Wrong? » » Duration of IP rights in magic (0 Likes) Printer Friendly Version

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mark2004
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Questions about rights (or lack of them) to make or perform illusions seem to provide an infinite source of debate. However, having read quite a few of the threads here at the Café, I've seen little if anything about limits on the duration of rights. In other words, when does the magic community consider that rights expire?

To explain my question a little further, one of the things I see as a major problem in discussions on forums like this is frequent confusion (or even disinformation) about the distinction between law and codes of professional ethics. Much that is said about rights by some of the main contributors here relates to codes of conduct developed among magicians rather than to law. I have read assertions that it is "illegal" to make or perform an illusion because a particular person holds "rights". But in some, if not all, cases it appears to me that the authority being called upon is the general opinion of the magic community rather than any intellectual property law. I have grave concerns about the promotion of psuedo-legal systems that are separate from and not guided by properly established law. Even in the world of sport (where organising bodies have a tendency to behave as a law unto themselves) they have regard to the established legal system in contractual and intellectual property matters. It sometimes seems to me that magicians feel their code of rights should be separate from and above ordinary law. Among the many problems with such an attitude is that it will lead to a false notion of security that will prove lacking when it comes to the big crunches - as when magicians have tried to enforce "rights" in court and found that those rights simply didn't exist in the wider world. It isn't my intention to open up the whole debate here - I've written the forgoing to be open and clear about where I'm coming from. My specific question is about how the law and the codes of ethical conduct compare on the matter of duration of rights.

One of the foundations of IP law is the idea that rights (eg. patents and copyright) are of fixed duration. They are temporary monopolies granted to creators by society in order to give creative people some incentive to create. Monopolies in general are considered undesireable - on the grounds that they are ultimately harmful to the interests of the great majority of people. So "rights" are in fact a trade-off between the interests of society in encouraging innovation and the interests of society in protection against monopolies. Thus the monopolies granted in the form of intellectual property rights have always been of specific and limited duration. That is a feature of IP law in major jurisdictions around the world and in international treaties. It is true that big corporations (especially from the music and movie industries) have lobbied with some success to increase the duration of rights but they have yet to remove the underlying foundation.

Oddly there seems to be a lack of information about what the magic community believes to be the duration of performance or manufacturing rights. Setting aside my concerns about the way rights are sometimes described in legal terms, I can accept that professions have codes of ethics and that performance rights to illusions could be codified in that way (albeit that there is no legal "right" to enforce these things other than by magicians withdrawing fraternal recognition). So what do magicians' codes of professional ethics have to say about the duration of performance rights and manufacturing rights?

In patent law you register an initial claim and it can extend up to a limited number of years (typically 20 or so, depending on the particular jurisdiction and laws). In copyright, the rights usually come into force automatically on creation of an original work and last for a set number of years (in some cases this now runs to several decades after the death of the original creator). It seems to me that the method for an illusion is something that would tend to fall under patent law (despite the view of magicians who regard patents as enabling exposure). So it could be argued that manufacturing rights ought to be of similar duration to patents.

What do others think?
Jonathan Townsend
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Magic tricks per-se are not protected by copyright or by patent and for the most part not even by any trade secrets law.

Legally you can do pretty much as you please.

Now if you want things to be different... sorry we'll have to discuss that offline.
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BlackShadow
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Since the code of business ethics is designed solely around the commercial interest of magicians, there is no need for a:

Quote:
trade-off between the interests of society in encouraging innovation and the interests of society in protection against monopolies.


Hence there is no fixed term. The rights exist as long as you desire, and as long as you have have friends in the cartel influential enough, who will shout and act loudly enough to support your claims.
JackScratch
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IP law doesn't cover magic effects. My personal guideline, and I encourage it's use by others, is to regard the intellectual property within a published, copyrighted work as being covered by that same copyright. With that guideline, if a copyright expires and a work becomes Public Domain, you may then regard the IP within as Public Domain as well.
61magic
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Mark2004, this is one of the best written essays I have come across in the Café.
You are right and what is usually debated here is all ethics based with no consensis on what the ethics should be.
In fact most of the posts are nothing more than complaints and name calling, few offer any type of solution and even go so far as to slam postings that do offer a solution.
I've found as you most likely have that ethics and the law run parallel most of the time and cross paths on a few occations.
Branding a builder, or a performer with the "Rip Off" lable does nothing to curtail the activity.
As I have said many time here this is a case of supply and demand. No performer or builder is required to follow the code of ethics someone has come up with.
Most of the posting here are not even in the correct forum but appear many times in the forum for grand illusions, this seems to be the main complaint that magicians have.
Interesting that large scale illusions are the high end items in terms of cost in magic causing few of the average income magicians to affort them.
And people wonder why a market exists for a low cost alternative?
If the originator's serviced this market I believe most of the consumers would go with the origial and not the copy for the sake of pride.
Professor J. P. Fawkes
Jonathan Townsend
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Quote:
On 2007-12-08 12:13, 61magic wrote:...
If the originator's serviced this market I believe most of the consumers would go with the origial and not the copy for the sake of pride.


Some originators don't want their works offered to all and sundry via retail outlet stores as stocking stuffers.

But that mention of "the market" pretty much begs the question as to what distinguishes the general public retail market from the actual functioning retail market for magic goods.
...to all the coins I've dropped here
JackScratch
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Agreed JT, filling a need doesn't equal ethical. That point of view is the same justification that could be used to justify the black market. It is simply filling a need expressed by the consumers. Filling the need shown by the consumers does not nearly ethical make. Often quite the opposite.
mark2004
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Quote:
On 2007-12-09 11:19, JackScratch wrote:
Agreed JT, filling a need doesn't equal ethical. That point of view is the same justification that could be used to justify the black market. It is simply filling a need expressed by the consumers. Filling the need shown by the consumers does not nearly ethical make. Often quite the opposite.



I agree that ethical practice is not automatically the same as meeting market demand. However markets and, more specifically, demand from large numbers of people, cannot be ignored. '61magic' is right that if originators or authorised builders sold their products to more people at more reasonable prices then the demand for "knock offs" would be undermined. I'm not saying they should be obliged to do so - that's up to them. I'm just saying this market effect is one of the immutable principles on which our world works and anyone who tries to ignore it is fighting an ultimately futile battle.

I think the posts by 'Jonathan Townsend', 'JackScratch' and others are realistic when they say, in effect, the only true rights are those provided by IP law (such as copyrights, patents and trademarks). Magical innovation seems no different to innovation in any other technical or creative art and my view is that society has worked out a broadly agreed set of rights for innovators that are common to all instances. It is therefore wrong to talk about magical ethical codes as if they were something people are legally obliged to follow.

So I would say that any magical method developed more than 20 years ago is definitely fair game for any maker who wants to produce his or her own version because that is when any patent protection will have expired (20 years is the usual maximum duration in UK law - substitute whatever other figure applies in other jurisdictions). Also, if the method is not patented then legally it's free to be exploited by anyone who can figure it out. Names and theatrical presentations might be protected for longer under trademark and copyright law (as used by Houdini to protect the exclusivity of the water cell escape) - but that presumably doesn't prevent someone taking a method and using it to create something slightly different that is presented in a different routine.

Lastly, there's a concept in IP law known as "prior art", which says you cannot claim rights (such as a patent or copyright) if the innovation or creative work in question is shown to be similar to something that already exists or existed in the past. It doesn't matter whether you're the first person to try to claim recognition - if there is prior art you can't have the rights. And it seems to me that at least some of the illusions over which rights are claimed are using principles very similar to ones that have been around in magic for a long time.
Dennis Michael
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This is a very interesting topic.

All magic falls into categories as outlined in Fitzkee's "The Trick Brain". There is really no new or innovations, including the "Origami". It still uses the same principles in base design. The presentation and how it is perceived by the audience is new.

It’s the old "hammer principle": If a hammer does something different even slightly, then it can be patented. One such design extended the length to exactly 16 inches, the width of studs in a structure. That became popular among carpenters who frame homes.

The slightest change in design, even though it may, on the surface appear exact, that change could qualify as a new product. Now does the "Origami" fall into the realm of Art? That becomes an issue, as well as the performance as an art expression.

We here on the Café are non-lawyers. As such, he who has the money and the best lawyers do have the tendency to win cases. So anyone can do anything they wish until it is brought to court.

In the Magic field, clearly there are those who have strong influences to key controllers of the magic world. By this I am say we "police ourselves". The reputation of "knock-off" artist is extremely undesirable and does prevent growth in one's career. I've personally have seen magicians never get a gig in top organizations based on what others have said about them.

Obviously, in the land of greed, there will always be "knock-off" artists, eventually; they stay quite low on the scale of professional magicians.

On a personal note, I felt the sting of "rip-off" artists related to a previous corporate venture which cost me thousands in business and could not do anything to stop it.

The sad part is our society is becoming less "morally conscience" of what one does and says, each year. Morality is a religious concept that must be instilled at birth through example as well as one's commitment to a religious organization that practices this morality. We are not born with morality; it is a learned behavior concept.

Having said that, look around us, look at the news, "Killadelphia" a nearby city, displays a true sense of this lack of Morality. How does this all apply to IP rights? Quite simply, one must care enough within to avoid ripping off others.

The buyers, also know they are buying ripped off products. Man will find excuses to justify what they are doing and the lower their self-morality the easier it is for them to continue to do it.
Dennis Michael
JackScratch
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I don't believe anyone is speaking of Ethics as though it were law, but let us not treat ethics and their effect on the world, as though they do not exist either. Unethical behavior, short of unethical behavior which constitutes legal infraction, should not be subject to fines, confinement, lawsuit, etc. Neither should it be condoned and accepted by the community. Ethics are not laws, but they are very important.
minnich_magic
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Mark 2004,

You say "Also, if the method is not patented then legally it's free to be exploited by anyone who can figure it out." If you want to talk legality, you've overlooked an important avenue for protecting secrets that comes with a "bite" against offenders - trade secrets. That is a whole discussion in itself.

But lets talk about your assertion that you think any IP can be exploited after X number of years, and that ANY methodology can be exploited which is not patented (which, if you or others follow that approach, can still get you into legal hot water).

Regarding methodology for illusions, it is fair to say most here agree that new methodology for magic effects, especially illusions, is rare to come by. For those whose passion and creativity enables one to create an entirely new effect using new methodology, it appears you are advocating that anyone be allowed to utilize said method(s), without giving any consideration to the inventor, to agreements he has with manufacturers and performers, and to hec with ethics. Is that your position?

Also, many illusions employ novel body positions or body motion in their methodology. The USPTO does not allow these to be patented. Once again, illusion innovators encounter another circumstance for which patent law has no provision.
This, plus the expense of patenting (over $10,000 when maintenance fees are added in)would by necessity raise the retail price of the illusion (I know from your post that is exactly NOT what you want to see. Plus the issue of public disclosure require inventors to seek other avenues to protect their IP, including reliance on those in this industry to abide by a basic code of ethics.

Without adherence to a code of ethics, this field will cease to grow, because creative magicians will no longer be motivated to create. When one casts aside ethics, the prognosis for growth becomes grim. Adhering to your recomendations can only lead to this result (and it does everytime a knock-off is made).

Tom Minnich
Jonathan Townsend
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Quote:
On 2007-12-16 13:41, minnich_magic wrote:...an important avenue for protecting secrets that comes with a "bite" against offenders - trade secrets. That is a whole discussion in itself...


As mentioned earlier, if material (let's just call all such "magic data") is offered for public sale without a separate and legal contract which describes all claims and items to be protected as trade secret - it is open season.

Now as to ethics... that presupposes a polis and citizens of adult status who have agreed to be accountable for their actions - which is not at all congruent to the never-never land of the market in magic where...
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Payne
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Quote:
On 2007-12-10 05:56, Dennis Michael wrote:

The sad part is our society is becoming less "morally conscience" of what one does and says, each year. Morality is a religious concept that must be instilled at birth through example as well as one's commitment to a religious organization that practices this morality. We are not born with morality; it is a learned behavior concept.



And I suppose we can't have freedom without religon as well?

Religon is not the sole proprieter of Morality. Believe it or not many people find it possible to live moral lives with out the fear of some invisible sky daddy to keep them in line.

Morality is a learned behaviour but it has more to do with empathy, you know that old Golden Rule concept that is far older than the Talmudic Laws your Morality is drawn from (can anyone say Code of Hammurabi) than it does any religious indoctrination you are submitted to as a child.

I don't see how we are any more "Morally Concious" than we were in the past. As it has already been pointed out many times in this thread the magicians in the Golden
Age of Magic and before were just as guilty of stealing other magicians secrets, presentations and gigs as they are today.

And I'll wager they were all religious people as well.
"America's Foremost Satirical Magician" -- Jeff McBride.
Jonathan Townsend
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Morality is a Roman term pertaining to the citizens of ancient Rome and their empire which treats the ruler as a living god. Since law comes from the law-giver and they have taken on godly status - you get this notion of divine law.

And yes they renamed the Greek gods and kept the temples to those gods and each temple had a staff and ... well you know the history of that stuff.

The notion of right and wrong having an external validation is quite useful when managing children though insulting and demeaning when speaking of or to adults.

To the children here: "yes your care-givers and local religious functionaries of your faith will help you learn right from wrong".

To the adults here: "your actions speak to all and sundry of the values you hold and it is in the consequences of your actions that you may find a validation of your beliefs about right and wrong".

Two distinct worlds. Funny to have to write such a thing but that's one of the differences between the worlds of adults and children - and even in our never-never land we need to respect that difference.
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61magic
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Guys I did not say filling the need was ethical, what I am saying is filling the need by the originators will reduce the copy stuff on the low end.
If originators are not willing to license builders for this market or fill it directly this will go on unchecked forever.
I personally feel the originators need to change their practices as much as the builders producing copies.
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edh
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61magic, I would say make two sets of an illusion. A high-end set made of high quality material, the Rolls Royce, and an intermediate set made of quality but not so expensive material, the Chevrolet. Both priced accordingly. This way a professional magician that performs high-end gigs who can afford the best can purchase the best. The mid-range performer can afford to purchase the intermediate illusion.

Just some thoughts.
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Bill Palmer
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Quote:
On 2007-12-08 10:45, JackScratch wrote:
IP law doesn't cover magic effects. My personal guideline, and I encourage it's use by others, is to regard the intellectual property within a published, copyrighted work as being covered by that same copyright. With that guideline, if a copyright expires and a work becomes Public Domain, you may then regard the IP within as Public Domain as well.


Drew -- you don't know what you are talking about. You write gibberish.

I'll be crystal clear about what I am saying. If you PATENT a magic trick, it is protected by IP law. Many tricks have been patented. Some are protected by design patents. Others are protected by normal mechanical patents.

Copyright covers only the graphical representations and the written descriptions/instructions for a work. This is why when Burling Hull tried to protect what eventuall became the Svengali deck, it was knocked off almost immediately. He copyrighted it. But copyright wasn't what he needed. He needed to patent it.

Laws in countries other than the US work differently.
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JackScratch
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You can't patent a move. I know exactly what you are saying, and I agree, but there is no way to protect a move. Patents only protect designs and their reproduction. Not a physical move, or it's use, where as copyright protects from the reproduction of the written word and images, but you can read a book then tell someone else the story without fear of legal reprisal. I know exactly what I'm talking about. I have however, made the mistake of assuming everyone else does as well.
MentalistCreationLab
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Have them sign a non disclosure LICENSE AND CONFIDENTIALITY - TRADE SECRET AGREEMENT this is the only way I have found to protect trade secrets.It will cover you from exposure
acesover
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I agree with all of the above. Except for the ones I disagree with.
If I were to agree with you. Then we would both be wrong. As of Apr 5, 2015 10:26 pm I have 880 posts. Used to have over 1,000
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