When a marketed trick is later published in a magazine (by the creator), what is ethically the proper way to lead others (interested in learning it) to the effect?

It would seem possible to
1) send them to the marketed (for sale) effect, assuming it was still available.
2) send them to the magazine for back issues, assuming they are still available.
3) teach them the trick as it is now widely available.
4) only teach them the trick if they are a subscriber to the magazine or a member of the group whose journal published the effect.

Which are ethical?

Bsears,
I think once an item is published in a magazine it would be okay to teach someone the effect. I would also say that to not tell them that it is in "an issue of __ magazine" might be unethical. It really depends on who is asking and whether you have an established relationship with the other magi. If it is some kid who comes up to me at a club meeting and asks me about an effect that I just showed to the boys, I would be reluctant to show him. And I would probably just refer him to the magazine or do like Jon Racherbaumer does just say "It's published". Letting them work for it means more when they find something on their own. We live in a society that is breeding impatience. I think to foster that would be unethical.
Just me, though.
Cheers

Why?

The publication of that trick in that magazine is the product of the business of that magazine. What gives you the ethical right to give away their product?

Yes guys. This is what I'm getting at.

Not sure there is an easy answer. But this is becoming more common as some really good stuff is being published in the mags. The issue becomes cloudier for me when the person is a member of a group like the IBM. Since such a member has paid thier dues, it seems to me they are entitled to learn the material published in the groups' journal.

You are not "giving away their product." The magazine's product is 1) a copyright, and 2) the material which embodies the copyright, i.e. the magazine itself, NOT the trick.

Unless the magician somehow conveyed the copyright to the trick to the magazine (assuming arguendo that there were such rights to convey - an issue for another thread), the magazine does not automatically gain any rights to the trick simply because they published its description.

The above was a legal answer, but think about it practically as well. Does Magic magazine own all of the tricks it writes up by Sankey, Ortiz, and other people who make their money from inventing tricks? If it did, there would be no incentive for them to publish in Magic or other trade journals.

Whether or not the trick’s owner (the magician/inventor) has given others a license to teach his trick is the real question. My take is that there is an implied license to learn and perform the trick by virtue of the magician publishing it. Whether or not someone should teach it to others, is a grey area.

It wouldn’t be permissible, either ethically or legally to set up the “Jay Sankey school of Magic,” based on the tricks he revealed in Magic magazine. In a similar vein, all of those magic dealers who sell David Blaine tricks, using his image, etc., are treading on thin ice if they don’t have Blaine’s permission.

But like many things in law, life, and ethics, it’s a continuum. Teaching a fellow magician a trick you learned in a magazine or book is probably okay, as long as it is properly attributed.

Being legal and being ethical are two different things entirely in our little world of magic where the possible profits do not warrant the aquiring of patents and the legal pursuance of protection of your material.

When you teach someone a trick you learned from a magazine, as opposed to directing them to the title and issue which they can purchase, you are denying the magazine the right to their profits from the sale of the magazine containing the information that someone is looking for. People seem to devalue material found within a magazine as though it were a public exposure and no one paid for it.

If I were to take your very literal word of the law, Thomas, it would also pertain to any commercially released trick. Yes, any trick in any form which is up for sale can be taught, because afterall, we are not selling the copyrighted physical matter of the instructions or the physical matter of the props. We are teaching or maybe even selling an idea which can't be copyrighted and these props are "different". And so begins the spiral into the depths of magic's dungeon wherein you need to show your stuff before people will share with you out of protection of their own rights.

Thomas, please tell me: the creator assigned some degree of right to the magazine to publish his or her material within the subscribers' circle and those who might purchase a single issue. Through what device, agreement, or contract did the magazine or the original author assign you or anyone the right to share the material provided within the magazine?

Sometimes they are, but not in this case.

YOU WROTE:
"in our little world of magic where the possible profits do not warrant the aquiring of patents and the legal pursuance of protection of your material."

Actually, you don’t need to “acquire” the copyright at all. It arises the moment you create an original work and embody it in a tangible means of expression. You don’t need to do anything else (but it helps if you register it). But not all magic is copyrightable… a subject that I’ve written on at length, here, in Magic Magazine, and The Linking Ring. If you’re interested in the issue, do a café search to find a rather long article on the topic I posted here some months back.

YOU WROTE: "When you teach someone a trick you learned from a magazine, as opposed to directing them to the title and issue which they can purchase, you are denying the magazine the right to their profits from the sale of the magazine containing the information that someone is looking for."

No, you’re not. A magazine derives its profits primarily from ad revenue, secondarily from readership. Readers read the magazine for articles, not just the tricks. I doubt you, or anyone could value the amount of revenue lost as a result of the teaching of tricks. I would guess that a magic trick vendor looses more revenue from somebody reselling a trick on e-bay than a magazine does by someone teaching a trick they’ve learned from Magic.

Sorry, I just don’t buy your “pity the poor magazine” argument.

YOU WROTE: "Yes, any trick in any form which is up for sale can be taught"

No, not if the sale is conditioned on a Non-Disclosure Agreement, like the ones used by Bob Kohler, for instance.

YOU WROTE: ...because after all, we are not selling the copyrighted physical matter of the instructions or the physical matter of the props. We are teaching or maybe even selling an idea which can't be copyrighted and these props are "different". And so begins the spiral into the depths of magic's dungeon wherein you need to show your stuff before people will share with you out of protection of their own rights. "

I’m sorry, I just don’t follow your argument here. Vendors are selling physical matter (the tricks themselves), and are NOT selling the copyrights to the tricks. As I’ve stated above, the magazines are not selling copyrights either, because they have no copyright in the tricks created by their contributors. "

YOU WROTE:
"Thomas, please tell me; the creator assigned some degree of right to the magazine to publish his or her material within the subscribers' circle and those who might purchase a single issue. Through what device, agreement, or contract did the magazine or the original author assign you or anyone the right to share the material provided within the magazine?"

They didn’t, that’s my point. The magazine has no right to assign (unless, as I pointed out earlier that right was EXPRESSLY conveyed to it by the author). Since there is little or no case law on this, my educated guess is that a court would interpret the practice of the publication of magic tricks in magician’s trade journals as carrying with it, at the very least, an implied license (from the trick’s author) to perform the trick. As to teaching the trick, or selling it, that’s a continuum, as I noted above.

And of course, all of the above assumes that there is a valid copyright in the trick, which as I’ve pointed out, is not always the case.

I hope this helps!

I think a better way of putting this is: law and PERSONAL ethics are often divergent. If I were to teach my son the classic pass based on the video I own ("On the Pass"), I would feel no guilt. And you would have a difficult time proving wrongdoing. However, you may completely disagree with my doing so. Personal ethics are our own individual morals, which vary greatly from person to person. Hey, some people burn copies of movies and sell them to their friends. And while illegal, they find nothing wrong with it.

Tom I guess you failed to finish reading my post. Notice I clarified my first statement by saying "...if you have an established relationship with the other magi...". So it comes down to money for you? I'm denying their rights to sell magazines? Come on! Listen sharing an effect among friends is part of magic and to say that it's un- ethical to share something that was published in a magazine, a book or a set of lecture notes is ridiculous. Among friends it should be and generally is no big deal.

If it is a young magician just starting out then I say absolutely point them to the printed effect. I think it's important that younger magicians discover the value in researching an effect and learning it in the written form. Too many times these days I hear young magi saying "I learn better if you just show me" or "I can't learn from books". Those are cop outs and laziness for the most part (of course if they have dyslexia that is a different issue).

I think Thomas did a fine job above clarifying some of the "rights" of the magazines, authors, dealers and readers.
Thanks for an interesting thread.

Great points. I was afraid for a while that this disccussion wasn't going to take off, which would have been unfortunate because there is a real and important issue here.

I agree with the arguement that this too often becomes about money. I find it unfortunate that ethics in magic seems to almost always come back to somebody getting paid.

IMO when an artist chooses to publish an effect in a trade magazine I think they are making a decision to allow the effect to become widely available to the community in exchange for the exposure it brings.

So...I think magicians showing each other the stuff that's printed in the mags goes to great lenghts to ADVERTISE the talent and thinking of the creator and the quality of the materail found in the magazine. This is good for all parties involved.

I get the feeling we are not reading the same posts, Thomas.

Who said anything about "pitty the poor magazine". Not me.
Who said anything about selling copyrights? Not me.

What I did say is quite simple. You believe if you read a trick in a magazine you bought, you are free to teach it because there is no legal protection against you doing so. Ergo, you buy a trick in a store, the same applies as there is no legal protection for the trick, only for the physical items which you buy. Seee below for your noted exceptions.

I disagree with your view that in this case the law and ethics are the same. They are not. As Josh points out Ethics are personal and one could have an ethic that breaking the law is the right thing to do.

All that said it is an interesting situation. There are at least two basic interpretations to law. One is "You have no right unless you have specifically claimed that right and are due it and ready to protect it." The other is "Until it is tested in court, nothing is illegal." Both of these might function in the court system but your ethics will decide if you find such interpretations as presumptuous and disrespectful to authors, creators, and inventors; or your right as a consumer or competitor.

Here is what I can glean from your post. You agree that in publishing a trick in their magazine, the magazine does not assign any right to the reader to spread the trick, as they have no right to assign. That right, if you believe it exists, still belongs to the creator. Through what device, agreement, or contract did the original author assign you the right to share the material provided within the magazine?

I fail to see how teaching something is a continuum from performing it. They are two different activities undertaken for two entirely different outcomes.



Most readers should stop here as the rest is just for clarity.

Thomas, you quoted my statement about patents and legal pursuance of same. Then you made some statement about copyright. Why? They are not the same and I specifically did not say anything about copyright in the part you quoted. I know that to which copyright pertains and does not.

You say it is not denying profit by teaching that which is taught within the magazine. But you agree that the readership provides a portion of the profit for a magazine. So we have established that there is a revenue involved in this issue to some degree.

You, however, either doubt that anyone who asks about a trick would buy the magazine if directed there, or that anyone could prove that there is loss of revenue by not directing people to the magazine. So lets reword that so it is less of a hunch. If I assembled 1000 magicians who are not subscribers to a certain magazine and who had asked about a certain trick which is taught within that same magazine, do you think it is likely that one or more of them would then actually go out and buy the magazine in question to learn the trick? And if you agree to that possibility, do agree that there is a chance that one or more of those people would think, "Hey this is a great magazine." and decide to subscribe?

Lets get specific. Do you think it is likely that Genii magazine sold more single issues of the issue which contained The Heinstein Shuffle than they normally sell single issues?

You mentioned Bob Kohler's very brave and creative attempt to protect his product through nondisclosure agreements to which end I wish him all the success in the world. It is as yet untested specifically in a court of law so it really is meaningless other than its emotional effect... which hopefully is enough to do the job required.

In the interest of furthering this discussion, I await your answers to my specific questions above.

Tom

14,

You have not answered my question:

What gives you the ethical right to give away their product?

I am not saying there are no answers to this, I am just interested in yours. An established relationship is not a reason. The basis or understanding from that relationship might be.

Lets take the product out of the loop. What gives you the right to take $5 from someone and give it to someone else? The fact that they give you back $5 they took from yet another party does not cut it in my book. It just makes you both more uneithcal.

What if you knew the person would buy the magazine in question if they found the information of use or interest to them? What if the author had granted them the right to find the material for some purpose and said "I don't care if you buy it."?

If sharing an effect among friends isn't unethical, then why is making copies of items to share with friends unethical... or isn't it? It is, in the end, the same thing; the sharing of information from which someone is rightfully making a profit without giving them their due profit. The argument begins on where the right begins and ends. The copyright protects the physical. In magic it is up to ethics to protect the intellectual... to which it appears they are sadly failing.

Tom

Posted: Mar 10, 2005 12:42pm
Quote:

I think magicians showing each other the stuff that's printed in the mags goes to great lenghts to ADVERTISE the talent and thinking of the creator and the quality of the materail found in the magazine.

So does making copies of the product, maybe more so; but there are specific laws against that. Why do you think they are there? To protect a person's right to make a fair profit and control their product.

Lets face it, if I took $5 from you, the law wouldn't even be interested. If I took $20 from you, the law still wouldn't be interested. If I took $100 from you that might get some interest, but I doubt it. At some point, at some number, the law will get interested. But a thief is a thief whether it is a dollar or a thousand dollars.

Tom –

Thanks for your detailed response. Unfortunately, I have to leave for a business trip this afternoon, so I will have to keep my answer short. Please don’t take my brevity for disinterest. I hope to respond more fully in a few days.



You originally wrote:
"in our little world of magic where the possible profits do not warrant the aquiring of patents and the legal pursuance of protection of your material."

Copyright law is one of the ways in which magicians legally “pursue protection of their material.” It is far cheaper and easier to obtain copyright protection then a patent for a magician’s choreography.

The “pity the poor magazine” was my sarcastic characterization of your argument. I thought that might be obvious, but sarcasm is notoriously hard to convey in writing. There should be a special punctuation mark for sarcasm.

YOU WROTE: “Through what device, agreement, or contract did the original author assign you the right to share the material provided within the magazine?”

As I explained, the author probably granted an implied license (non-exclusive) to the reader to perform the trick. A non-exclusive copyright license may be implied and need not be written. A court can, and IMHO would, infer that such a license was granted. If your looking for a term to plug into your “device, agreement, or contract” list, that term is “implied non-exclusive copyright license.” The scope of that license (are public performances permitted? How can the license be revoked? Is teaching permitted? Etc.) is unclear, and the point we are all debating. As I mentioned, there is very little U.S. legal precedent on this.

That’s all for now, sorry!

Posted: Mar 10, 2005 1:45pm
Quote:
On 2005-03-10 12:42, Tom Cutts wrote:
Quote:
I think magicians showing each other the stuff that's printed in the mags goes to great lenghts to ADVERTISE the talent and thinking of the creator and the quality of the materail found in the magazine.

So does making copies of the product, maybe more so; but there are specific laws against that. Why do you think they are there? To protect a person's right to make a fair profit and control their product.

Lets face it, if I took $5 from you, the law wouldn't even be interested. If I took $20 from you, the law still wouldn't be interested. If I took $100 from you that might get some interest, but I doubt it. At some point, at some number, the law will get interested. But a thief is a thief whether it is a dollar or a thousand dollars.

Sorry, the law WOULD be interested and WOULD consider you a thief, regardless of the value of the stolen item.

Posted: Mar 10, 2005 1:52pm
Quote:
On 2005-03-10 12:22, Tom Cutts wrote:
You have not answered my question:

What gives you the ethical right to give away their product?

Sorry Tom, here you are committing the fallacy of “begging the question” deciding whether or not it is ethical to teach published tricks, and whether a right is required, are precisely the points we are debating. By qualifying 14s statement as requiring an “ethical right” you are assuming that 1) one is required, or 2) one has not already been granted – but these issues are the subject of our discussion, and therefore can't be assumed in your premise as positions which we all agree are true. Your statement, therefore, does not provide support for your opinion, but merely restates it.

This topic seems to crop up on a regular basis, with the same arguments going round and round. Part of the problem, I think, is that different people are working from different definitions. I think it's crucial to the topic that everyone speak the same language, so to speak, so here are my thoughts.

First of all, people often confuse issues of legal/illegal and right/wrong. Questions of legality are based in fact, while questions of right or wrong are opinions, and this is a crucial distinction. For example, if you think killing people is wrong, that is an opinion; true, it's one that is shared by the vast majority of people throughout recorded history, but it is still an opinion, not fact, because there are people who believe differently. On the other hand, if you say that killing people is illegal, that is a fact: even if you don't believe that killing people is wrong, you can still go to prison for it.

What does this have to do with magic? The problem that many people have is that they believe their opinions are so obviously right that they aren't open to discussion, i.e. they are facts. Opinions require justification, while facts do not; you cannot simply say that something is wrong merely because you believe it is.

When it comes to magic, it is pretty easy to establish questions of legality and illegality. Copyright doesn't protect ideas; it only protects the expression of those ideas. For example, if I wanted to publish a book on card magic, I could gather material from a number of sources, and as long as I didn't use the same words the original author used, I wouldn't be doing anything illegal. On the other hand, if I published the original text of a published work on the Internet, for example, I would be in violation of copyright, since I was copying the same form of expression.

The main problem facing the creators of magic is that magic is typically nothing BUT ideas, which aren't protected by copyright. That's why there is nothing illegal about sharing information about tricks. Whether you think that is right or wrong is a matter of opinion, not law.

Traditionally, magicians have adhered to a self-imposed code of conduct, wherein they are scrupulously careful to give credit for previous work in a certain area, and to support the creators of magic by purchasing their material. This is a fine and noble thing, and is a tenet I follow myself. However, there is no legal obligation to do so, and is in fact a personal choice based on one's own opinion of right and wrong. Unfortunately, this can be carried to ridiculous extremes by some.

As an example, I own all three volumes of Paul Harris' "The Art of Astonishment." My daughter is also learning magic, and I taught her Galaxy from volume 3. Now, have I done anything wrong? An argument could be made that since my daughter doesn't own AOA, I am morally obligated to buy another copy if I want to teach her the trick. This is not an argument I agree with, so I don't think I've done anything wrong (my opinion, of course). What about teaching the trick to a friend? Shakier ground, ethically speaking: would my teaching the trick deprive Mr. Harris of a sale that he would otherwise get if my friend purchased the book? Perhaps; but what if my friend only wanted to learn Galaxy? That one trick is only a small part of the entire book; perhaps Mr. Harris is only losing a small percentage of a sale.

The point of all this is that this is not simply a matter of black and white. It is up to each individual magician to decide for himself or herself what is acceptable behavior, and what is not. The best way to do that is decide what harm your actions cause. In the case of a trick published in a magazine, it's pretty straightforward: the magician is not harmed in the least, since by publishing it he receives whatever monetary value he is going to from the magazine. In the case of the magazine, it's necessary to know what the situation is: is it a one-off situation, or are back issues available?; is the one trick worth the entire cost of the magazine, or does the price of the magazine reflect the total value of all the magazine's contents, with the trick being some fraction thereof?

To my way of thinking, fingerpointing and calling people thieves is counterproductive at best. If they aren't doing anything illegal, then your judgment of their behavior is nothing more than your opinion. If you really believe that something is wrong, it's better to educate people about why you think so, and help them come to the same opinion. As I said, most of us believe that it is important to support our fellow magicians, and wouldn't dream of sharing something that is easily available and directly benefits the creator. On the other hand, most of us also believe that the education and cultivation of new magicians is important for the advancement of our art, and don't feel any twinge of guilt when sharing what we know. Communication, I think, is the key, on both sides of the issue.

EXCELLENT Phaedrus

My way of thinking too.



Hey bsears, Where in the world did you find a trick in a magazine worth using? Lol

I think most readers view the tricks in a magic magazine as a bonus. It’s Free tricks. The author is giving it away, and I can’t really see an author who gave a trick to a magazine getting uptight if the reader wishes to give it to a friend. (With credit of course)

In a way, it’s like the information here on the Café. When you give out tips and info here, do you care who uses it? Would you care if I told my friend?

Tom

Phaedrus - nicely written! I like your distinctions between opinion and fact.

One thing about publication in a trade magazine. If it is the Linking Ring, for example, the point is moot. Everyone who joins the IBM gets the magazine. Obviously you can teach an effect to someone else in the IBM, assuming they lost or did not get their copy. Now whether that person has the rights to any trick taught in past issues is a different point.

I am, and have always had trouble with the notion that sharing other person's tricks and effects without their permission is somehow a part of magic. Share your own stuff, if you want. Get permission for the rest. Show them a trick and if it is something they like, direct them to the source.

Thanks, Chris for speaking your belief. I agree 100%. Share your own stuff and ask permission for the rest.

TomBoleware, Thanks for the "free tricks" line. That is indeed the crux of the problem. The readers do not value the tricks even though part of their subscription and part of the advertiser's fees went to pay for that trick being there. You may not be shafting the creator but you more likely are shafting the magazine.

You paid nothing to be here so the advice here is free and should be kept in mind as such.

This is a delusion. Legality is nothing more than an opinion on a given day by a given person. Is it illegal to kill? Not in war. Not in many cases of self defense. In comes the greyness. OJ is innocent, a court said so.

As to teaching a child a trick from AOA vs. teaching a friend, why on Earth should there be a difference? Might it have not been a nicer thing to buy your daughter the AOA book or at least a manuscript in which it originally came? I have a concern over what actions like yours teaches a generation which already finds little value in intellectual property. But that is a somewhat different concern.

I do not see the argument of losing partial sales as realistic. Do you buy parts of a book? If you like something in a book and buying it is the only way to get it, you either buy the book or you don't. You either get the info or you don't. Or did you mean the author would lose a portion of sales (not "portion of a sale")based on those who decided not to buy the entire book for one trick?

Now on one hand Phaedrus tells us that the problem is people believe their "opinion" is a fact. On the other he turns around and says "In the case of a trick published in a magazine, it's pretty straightforward: the magician is not harmed in the least." which is really nothing more than his opinion.

Lets face it folks, anyone who starts a magazine knows one truth about a magic magazine. If it doesn't have tricks in it, it ain't gonna fly. From this nugget of reality I can surmise that tricks are what a magic magazine is about and the interviews and adverts are the bonuses. Anyone who says that tricks are little extras in a magic magazine is out of touch with the reality of the situation.

In closing, I agree it is important to foster new magicians. I also agree that authors and publishers are up the legal creek when it comes to their products being protected. When we give away the material contained within a media, without requiring that the person purchase said media, we create those who do not respect the creators and publishers of the materials we use.

Cheers,

Tom

PS I'll get back to you, Thomas, when I have more time as well.

My kids have arguments that turn out like this all the time: "yes it is Garrett. No it isn't Hannah. Yes it is. No it isn't. uh huh. nuh uh. uh huh. nuh uh. DAAAAAAAD Hannah isn't listening to me!

You can't prove a point to someone who is dead set against agreeing.

If we can't teach what we learn, from someone else printed, video'd or in person; Than Daryl has made a BIG error in his 8 video set of almost exactly that. Come to think of it all the video's and books I have are evil. But if we count on law to cure all ills, we are equally screwed.

So how do we read this riddle? We must trust to our best judgement and experience, and hope everyone else will do the same, knowing full well they will not.

Hey at least were not mice, as soon as our parents got excited, hungry or even bored, they'd eat us. I bet they don't worry about other people using they're material.

OK Thomas, I have a few minutes...

When you bring sarcasm into the discussion it only serves to distract the process and taint your response. I'll try to let that go.

I disagree that copyright is a way to pursue protection of one's material. Therein could lie part of our problem. Copyright only protects the physical description and such. That is why I said patent. Copyright is powerless to protect the secretive essence of a magic trick, the moves, the method, etc. It is awfully weak as well at protecting the physical description but that is a whole 'nuther subject. And we haven't even touched on "pursue", by which I mean take action against violators. Copyright is just a mechanism... a mechanism which does woefully little to protect the works of fellow magician from being spread about against his wishes. Now before anyone spouts off, "If you don't want it shared, don't publish it." be very careful what you wish for. Your wish may be closer than you think.



I'm not looking for any term to plug into anything. I am questioning people to see if they think that the person who actually would be the most likely to carry the right to grant teaching rights has actually granted them a right to do so. It all goes back to the polar opposites:
"I am going to do what ever I want until someone proves to me it isn't right."
"I am not going to do anything until I know I am doing something that is right."
I see one of those poles as greedy and lazy, and the other as respectful of the circumstance in which one is in.

So lets get to the heart of the matter. I challange you to show me where in this conversation I have said "You do not have the right to perform a trick you read in a magazine." I also challenge you to come up with some precedent or reasoning as to why ther should be a natural continuum from learning and performing to teaching. But perhaps I am repeating a topic you have not had time to address.


Great in theory but totally unrealistic in practice. Falls under the "we got better things to do" clause.

As to begging the question: you're darned right! Being that I was the third poster to this thread where I first asked it, it was completely valid. The fact that it has gone unanswered speaks volumes to me. Your undermining efforts would be better served in a more positive, constructive manner. Please go back and reread my reply to 14. I asked for his justification. If this is a discussion about why certain things should or should not be done, then everyone can pony up their justification.

If no right is needed, that would be the "what" that gives the ethical right. I just want everyone to get their cards on the table or at least give a little thought to what is driving their actions.

Cheers,

Tom