The plot thickens.

It seems we are mostly in agreement that when an individual purchases a magic trick he or she has the presumed right to perform, even on TV. If you dig deeper, you quickly realize that the term "Performance" needs to be defined.

There was less agreement when I asked about digitally recording copyrighted material, duplicating and selling for profit. Does a person have the presumed right to do this after purchasing a trick?

Copyright law is very strong. If one can agree that a magic trick is a performance piece, like a mini play - an artistic expression - then it is deserving of copyright protections that are shared by other forms of artistic expression, like music, poems, etc.

It seems nearly impossible to think of a magic trick a just a product and not connected to theater and performing. Everything about a trick is performance material. To look at a magic trick as simply a utilitarian product, like a screwdriver, suggests we are nothing but screwdriver technicians, and not 'performers'.

If one agrees that you can't digitally copy copyrighted material, then you've probably defined performance: The purchaser of the item performing the item, live. To suggest that a digital copy of the person performing his rendition of copyrighted material is a performance, would ignore copyright law and begin a rapid dismantling of copyright protection for a variety of artistic expressions. Imagine...anyone could perform anyone's material without permission, credit or compensation (PCC).

If, for the purpose of copyright discusson, you define performance as a non-recorded, or Live performance, then you need to ask yourself again, if a purchaser of a trick has the presumed right to perform a trick on TV. Since specials like the FOX Street Magic Exposue Show, David Blaine specials, Copperfield, etc, all Record their performances, they don't meet the 'live' definition. More often than not, these recorded performances are duplicated, then a copy is sold to a second party (Network television), which in turn resells it to advertisers and affiliate and nonaffiliate broadcast companies. The original performer might be on the otherside of the world, sleeping, when he is 'performing' on TV.

Perhaps this is why most big name, nationally televised performers PCC all their material.

A sad fact for magic is there has never been a court decision that defined magic's standing in intellectual property law. Is a magic trick an artistic expression, a product, and perhaps a hybrid of the two.

Stay tuned.

I think this would be a wonderful question for a very high-priced law firm to spend several thousand hours researching and formulating a legal opinion. I'm just glad I'm not springing for the bill.

As far as I'm concerned, a "magic trick," as you state it, is a product in the exact sense that you indicate: it's a widget for sale just like any other widget out there in the world. What the purchaser does with it is his or her own business. Just like a music score or a theatrical script. Do musicians and actors look at themselves as screwdriver technicians?

Now, if said purchaser goes off and reproduces it and re-sells it without permission, then I'd bet someone would go after the purchaser.

Me, I'll just sit back with a bowl of popcorn and let someone else pay the legal research fees.

Except that in both musical scores and theatrical scripts the right to perform these is specifically protected and the performance right for most public performances is specifically purchased separately. Buying the score or the script does NOT give one the right to perform them under most conditions.

Having said that, it is true that currently there is no precident for the protection of magic performance. Most simply aren't "good" enough to warrant it. By that I mean most would not be seen as "theater" but rather as bare examples of fooling others. Those moments when magic does become theater are, more and more, being protected under theatrical laws.

Owning a screwdriver does not give one the right to build(copy) patented items under most circumstances.

You're right, and I stand clarified.

What I meant to say, which I obviously didn't was that once someone has a score or a script, they can interpret it, and perform it, any way they choose. Most performance scripts include stage directions, prop lists, and other information, which comes from the stage manager's prompt book from the original production. Some scripts have more stage directions than dialogue. But, aside from the usual requirement that the wording itself not be changed, there is no requirement that the original stage directions be followed. Most good directors ignore them and start fresh. Sometimes you'll even see the original set design and costume plots. Most good designers ignore these too.

The same is true of musical scores. Yes, these have notations and all that, but they still allow for a wide range of interpretation.

I think it also comes down to the definition of the what constitutes a "performance piece". If I release a fully scripted presentation, using magic effects, then I could see how that would constitute something akin to a theatrical play or a musical composition. However, if I release a holdout - even with suggestions for how to use it - then that really isn't a dramatic work, is it? It is more akin to a smoke machine, trapdoor, of special light filter. All three of those might come with instructions and suggestions, but as a rule, they do not come with a full "play" attached to them.

Wesley James has argued that if a magic trick comes with a script, that given the nature of copyright law re: live performance rights, you do NOT have the right to utter those words on stage OR on recording without permission. Of course, he comes from a background in theater. He does, however, believe that one has a right to do the tricks per se, without worry. (I think I am repeating his argument correctly.) He would be someone to speak with about this matter.

As for musical arrangments, you cannot take a musical composition and change it around for personal taste. I found this interesting. In magic, we are encouraged to do that to personalize things. However, in music, that would be considered making an "arrangement" and is expressly forbidden by copyright.

In my eyes, this is the best argument we have for protecting our secrets, not from being shown on TV, but from being ripped off by unethical magicians re-releasing them with minor changes as their own. (Doing the Asher twist with Queens instead of Aces, for example.)

Brad HEnderson

"As for musical arrangments, you cannot take a musical composition and change it around for personal taste."

Interesting statement. Care to clarify what you mean, Brad? Are you refering to performance of, or publication of said changes? As I understand it copyright law leaves room for "arrangements" in the genre of parody of the original.

This is all very confusing to me. Back in the old, uncomplicated days, when we bought a trick that included patter, we could use the patter. That's why the trick came with the patter in the first place. A lot of us ignored it or changed it, but it was there so we could use it. We didn't have all these "rights" questions bouncing around.

Of course, back then we we far more interested in doing magic, and in contributing to magic, than in wanting to get paid a buck every time someone yawned right after we did because they were using our yawn.

Tom,

This was a revelation to me. I play in a community band. We were playing a piece which was "close" to sounding good, but I just did not care for it. I mentioned that with a little work that it could be tweaked into a better song. A friend, who is both a lawyer and an arranger, mentioned that while he agreed, that would be considered a violation of copyright. We then discussed the parallels/differences in the world of magic, where changing something was what we strived to do.

As to parody/satire, that would be something different, and covered by "fair use" I think. That was not what the changes I referred to was about.

To George, there has been discussion in magic about "rights" for years, especially after any product is released with "rights withheld" limitations. I believe it was one of those products whick spawned the conversation in which Wesley made his opinions known. His take, and again this is from memory, was that in any publication of a script, legally, the rights are automatically withheld in regard to performance. The exception would be if the author stated, "You are free to use this...."

In magic, we tend to assume otherwise. But the reality of the way the larger world works is that a published script is copyrighted and may not be used in performance without permission. Yes, in our little world things are understood differently, but the larger point is important to consider, if we are looking to some larger unified theory of IP in performance.

Brad

Brad,

Was there any mention of or citing of the portion of copyright which states this? I've never heard copyright used for such purpose and most could site seeming precident of thousands of songs which have been rearranged musically. That said, it is extremely rare to rewrite the lyrics to a song, except in parody.

Tom

I know that on a lot of my sheet music it says specifically that this song may not be arranged. For example, I want to take one of the later symphonic works by Stravinsky and arrange it for a wind ensemble - that would be consider a violation of copyright law.

Likewise, I cannot take a song I like a arrange it for marching bandm unless I have permission. Drum corps have gotten in trouble over that as well.

I know that even though my friend transcribes many obscure pieces, he is always working on obtaining permission for them. So, apparently, arrangements are covered by copyright law.

WOW! So if you purchase sheet music per se (the musical score of a song let's say), then you are not by copyright law, allowed to change the arrangement of the song if you then perform it?

One would assume on that basis then, that if on the other hand you purchase the RIGHTS to the song itself - you can do whatever you like with it.

I wonder how far the law of precedent reaches in this, and when and if it is ever applied to bands / singers who just play the odd note differently, or where a singer or a musician drifts off into riffs in places where the original singer or musician did not!

Applying these same principles to the field of mentalism, does that mean then (in the eyes of copyright law) that when you purchase a DVD, a book or a product which includes or is a magic trick / effect / routine you are NOT then (strictly speaking) allowed to perform said trick / effect / routine in any way other than in the EXACT form in which it was shown or described or detailed when purchased?

EEEEK ...! If so, it doesn't make for much varied and original performance does it? What a minefield! (Interesting reading so far gents - thank you!)

*Magical Lady*

As I understand it, purchasing a music book filled with Beatles songs does not give the purchaser permission to perform said tunes publically, varied or otherwise. But I think there is a difference between "improvising" something in live performance, versus buying an orchestral song and saying, "ok, we are going to change this part, trumpets, I want to you play this instead." We may be arguing minutia, but such is the way of law.

But to the eekk, statement - exactly. According to what my lawyer friend has shared, if you buy my Satanic Booktest, which is a fully scripted piece, and alter it, then that would constitute an "arrangement." Think of it this way, if you buy the rights to perform "Beauty and the Beast" you are not allowed to change the words to it. I think they must have a legal basis to insist upon that. Same is true of a play by Samuel Beckett.

Brad

That certainly covers the minimal change issue. "But Your Honor, I play that note with my pinky and I've changed the voicing of this chord right here. Now it's my song."

One man's petty minutia is another man's exacting detail.

Oh, my... we're back to splitting hairs again...

I understand the point about a trick released with "rights withheld" limitations. If I release a trick I can release it any way I want; then it's up to me to go after those who violate the implied "agreement" made by their paying for the trick. As has been discussed here many times, going after the violators in the majority of cases is not a very practical thing to do in terms of legal fees versus actual compensatory damages.

As far as punitive damages, even if I win the case, a jury might award me a buck.

Commercial scripts are protected, yes, but for a different reason than "automatic" copyright. The copyright law says that if I publish something, I basically own the rights to it: it can't be copied as is and re-distributed by someone else. Even so, to make sure my authorship can be proven, the Copyright Office wants me to send them a copy, file a form, and pay a fee. That way it's on file there with a date on it. But it's still up to me to go after any violators.

And that's because this is civil law, not criminal law. The local US Attorney will not put his caseload on hold to go after my violator.

Commercial scripts are protected because they are owned by publishing companies: Tams-Witmark, Dramatists Play Service, and others. These companies buy the rights from the authors and serve as the distribution channel for the scripts. When a script is sold or used, they pay the authors a royalty. This is strictly business: it's a way to distribute scripts as intended without the writers having to do it themselves. These publishing companies write the contracts with the production companies, charge an arm and a leg, and definitely go after people who violate the contracts.

It's a tidy little business.

But the funny thing is that, when they do go after a violator, their basis isn't a copyright issue -- it's a contract violation issue. "It says here in Paragraph 76, Subparagraph 53, Clause Y, that you will not change this wording. You signed that contract. And you changed the wording. Pay up."

Civil law, not criminal law.

In magic, however -- and I'm going by truthteller's comment that in magic we assume otherwise when it comes to using published scripts -- we have well over a hundred years of precedents to the effect that a script published with a magic trick is there to be used at will by the user. Any jury okayed by the plaintiff's attorney ( ) will take these precedents into consideration.

I think we need to look forward as far as how to protect stuff we want to protect, not look back at what may have been done before.

Want to protect a script as is? Fine. Indicate so in the piece, send a copy to the Copyright Office, pay the fee, and you're all set. Just be ready to call a lawyer every time somebody violates your rights.

Tom,

I think the question would be, is it the same piece or not. If it is, then it is an arrangement and subject to copyright violation. John LeBlanc had an interesting lesson regarding this on his blog. I am not really qualified to argue the point. However, if my lawyer friend/arranger says it is so, I feel reasonably confident it is.

George,

I argued a similar point with Wesley. I personally believe in the world of practical reality there is a tacet assumption among both people who buy books and the people who produce them. He, however, was very sure that the larger theatrical communties standard would be upheld. Let's face it, while for hundreds of years magicians have assumed they could use the scripts in books, for an equally long time performing magicians have copyrighted their performances as plays in order to prevent the unscrupulous from stealing. So it would seem that the leading lights in our industry recognize the words we deliver as scripts, so it would stand to reason your honor that any words included in a book to accompany a trick is a script and therefore.....

But we are getting off topic. Chuck raised the question that perhaps magic tricks would be protected in the same was as a play or piece of music. I simply wanted to offer that I feel that the "arrangement" idea could possibly apply to certain tricks lifted and re-marketed to the magic population with only minor changes.

As to buying a trick and performing it, I feel that unless rights are withheld, the purchaser has free reign. However, I mentioned on another thread that I felt that if a person bought a trick with a script, that it felt right to me that the writer of said script would receive credit.

In light of Wesley's expertise as someone who has been involved in both theatrical production/writing and IP law, it would seem as if that would be the case.

Regardless of what we may have done for years.

Brad

Yes, I agree that we're getting off the subject here.

However, you raise two points, and I'll address them.

First, "for hundreds of years magicians have assumed they could use the scripts in books..." We're not talking about assumptions here, Brad. I've been in and around magic since 1968, and this whole issue of the patter in a book being "a copyrighted script" is new to me. In the first place, if this were an issue, it would have come up long ago, like back in the 1940's when gazillions of books with patter were written. But for all this time, people who released tricks and books have been more interested in the magic than in the making of a buck.

So far, I haven't seen a single trick with patter in my library (mostly the classics and stuff up until the 60's) that says, you just use this speech as is or I'll come after you. And I don't remember seeing that in a magic magazine either; of course, I don't read every card trick out there.

Second, when a "leading light in our industry" copyrights his or her stage script, then, yes, he or she is copyrighting their own material. Material they are performing themselves in public, not material they've published for others to use as in a book or a released trick. It's a different situation altogether.

What I find really fascinating is one little thing. As far as I can tell, most of the effects in question here -- the ones with "published scripts" probably sell for what, twenty-thirty bucks? Maybe forty? How many of these are sold? Maybe a couple or a few hundred? Hardly a get-rich-quick product like the Pet Rock or the Beany Babies. I'm a little slow on the take sometimes, but I'm not a glutton for punishment. If I were to release an effect for twenty-thirty bucks knowing that I'd sell maybe a few hundred (say $35 each times 350), I'd make $12,250 in sales minus cost of goods sold, for a net of maybe $9,000. An IP lawyer here in the Bay Area can charge maybe $300 an hour, and that's not much. $9,000 divided by $300 is 30 hours of his time, hardly enough to put a case together to go after someone who ripped me off $35.

Is this worth it?

If I were the lawyer, heck yes it is!

But fine, as I said, if you want to protect the patter with a published trick from this point on, then by all means indicate so on the copy. Some people will do this and some will just go on being creative and spending their time productively.

And the point is, legally they do not have to. The rights are automatically reserved by the author/creator.

Believe me, George, I took your side on the pragmatic side of matters arguing this with Wesley. However, what we assume, and what we want, are sometimes different from how the law reads. And in a thread which is attempting to explore what legal protections may be available to us, I think it is important to recognize those elements of legality which may be different from what we as magicians assume to be true - based on common custom in our craft.

I was arguing all the points to make, but someone with far more knowledge and experience than I offered a counter point, which upon consideration, I had to defer to. I am not in a position to offer that counterpoint. I can only alert people who may care that it exists, is well thought out, based in legal fact and precedent, and accessible to those who wish to pursue it.

Brad

I think we've gone about as far as we can here...

As I said in my first post here, I'll just sit back with a bowl of popcorn and watch what happens. Hopefully this issue will never make it to a court, even though it would be fascinating to listen to the arguments back and forth.

Actually, I think the play and musical publishers have the right idea, and they've certainly had lawyers in stock for a very long time. When they contract with a production company for the rights to do a show, they write the terms into the contract in plain old Legalese instead of falling back on copyright law. That way they can just claim breach of contract instead of trying to show precedents and all that other stuff. It's a lot simpler and cheaper.

But then again play production is a much bigger business than mainstream magic, and the monetary stakes are a lot higher.

While I have heard of playwrights demanding that people perform their works "as written," most of the time these cases have been the result of people wanting to censor part of the material in the play. I have NEVER heard of this being applied to a piece of music, even though it is a possible narrow interpretation of the copyright law.

In most cases, all that needs to be done is to contact the person who controls the rights to the piece in question and ask permission to make the changes. They will probably think you are nuts for making the call.

Many pieces of music are published in the form of lead lines and chords, not only in "fake books," but also in normal publications. The performer is free to choose how he or she will interpret these things. In fact, for many years, the lead line and chord was all that was necessary to furnish in order to register a copyright (along with the form and the necessary fee, of course.) Now, it's even simpler.

The idea of doing "arrangements" of pieces that are not in the public domain is not new. There are avenues that may be explored for this.

There have been cases concerning music being transcribed/arranged for drum corps without the composer's permission. Many pieces of sheet music that I have specifically state that arrangments would be considered a violation of copyright. I asked my lawyer friend about that specifically. Let's say I bought the sheet music for a band piece. I liked it, but not completely. I thought it could be better. So, I modify it. A little tweak here, a little change there. By magic standards, this is a good thing to do. However, he said that if it were based on a published piece, that any changes made to it would be considered an arrangement and thereby subject to copyright law. I then asked him about the same with a play. Specifically I was considering the parallel we find when people republish a magic trick with only minor improvements. Would that then be considered an "arrangement" of the original idea? Sometime to consider.