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Parson Smith
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Well, while we are debating right and wrong, I need your input.
Recently, I was speaking with a well known, well respected magician.
He said, "Magic tricks are not copyrightable."
Would you please share your comments on this comment?
Peace,
Parson
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Neil_Brown
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Copyright is a national right- it will depends on the laws of the relevant country.

Generally speaking, ideas are not copyrightable; however, you can copyright the expression of an idea. Thus, if you come up with a new card trick, and write it as a set of instructions, then your instructions are likely to be copyrighted (provided you meet the necessary criteria, which includes originality – essentially, that the work was your own creation, not simply copied from someone else), and thus protected. However, if I read your instructions, I would struggle to see how you could prevent me from performing an effect based on those instructions (other than merely reading the instructions out as the performance in itself, or using pre-scripted patter, for example) (other than in a contract of sale, for example, or, in terms of your copyright licence if you offered your instructions as a download, for example).

If I see someone performing an effect and worked out the method, I would be surprised if you would be able to stop me using that method for myself- a method is, after all, an idea. However, if your performace was, or embodied, a dramatic work, then you could prevent me from copying (performing) that dramatic work - your routine, essentially.

I doubt if I am the first person to juggle machetes blindfolded, for example- but I'd be pretty cheesed off if someone watched my routine, and then decided to perform an arm-chopper illusion with a member of the audience, followed by three machetes blindfolded whilst balanced on a bucket, using my jokes (which, to the best of my knowledge, are genuinely original material, although the "false arm" prop in itself is rather clichéd) and in my comic style.


Anyway- just my thoughts on this issue- not legal advice.
JackScratch
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All very true. I would like to add that you can not copyright an action, or concept of an action. As such, if the workings of an effect can be suitably reworded, you can the publish them as your own. This is tricky because you never know what a court would decide on this issue. If the two works are found to be similar enough, then the one with the original copyright will have rights over the other, which would recieve penalties. This is where the subject of intelectual property comes in. Many people want to copyright (or whatever it would be called) intelectual property. Things such as specific moves and effects created by a series of moves would them be protectable under penalty of law. I myself have very mixed feelings on this subject. I believe people should have a right to defend their original works legaly, whatever those original works entail, however in the US copyright laws are completely out of control. The longevity of copyright law here is insane. Copyrights last anywhere from the lkesser 90ish years, to the more common 120+ years. The likelyhood of an original creator of a work profiting from that work for that long is extremely unlikely. There is a certain degree to which society builds on its previous works that is prevented by copyright, but without some defense of ones works available, the incentive to create great things does not exist. What you get in the end is a tricky situation, one which should be, but rarely is, aproached delicately.
leapinglizards
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Correct: magic tricks are not copyrightable, trademarkable or in most cases even patentable, at least not in any way that is really both useful and economical.

Specific presentations/scripts ARE copyrightable, and there is enough theft of presentations that I would say this is worthwhile persuing for many people.
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Neil_Brown
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Quote:
I would like to add that you can not copyright an action, or concept of an action. As such, if the workings of an effect can be suitably reworded, you can the publish them as your own.

Agreed- this is exactly what I meant with the concept of the idea / expression dichotomy.

Quote:
Many people want to copyright (or whatever it would be called) intelectual property.

Sorry- I got a bit lost from here on. Copyright is a form of IP, so, I am not quite sure what you mean by "copyrighting... intellectual property"? (In any case, I'd suggest that the correct protection for a series of moves (a method, essentially) would be a patent.)
Jonathan Townsend
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Quote:
On 2006-06-05 00:42, Parson Smith wrote:
Well, while we are debating right and wrong, I need your input.
Recently, I was speaking with a well known, well respected magician.
He said, "Magic tricks are not copyrightable."
Would you please share your comments on this comment?
Peace,
Parson


The notion of copyright is in place to protect the holder from having unauthorized copies of a work sold by others. Think of it in terms of an artist giving copyright to a publisher to sell copies of a work.

Okay on to magic.

There is much "monkey see, monkey do" in magic. That is copying of a different sort. One that diminishes the art. Fortunately monkeys can not contract, nor hold any claim to artistic originality. How much of the material that has been published by monkeys will survive a proper vetting remains to be seen.
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Neil_Brown
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Quote:
unauthorized copies of a work sold by others

It's wider than just sale - it includes (authorised) copying, performance to the public, broadcast, renting / lending. I am not sure about the situation in the US (I think things are more focussed on the economic rights in mainland Europe), but, in England and Wales, moral rights (rights to be identified as the author, for example) are equally important. I'd suggest it is to prevent unauthorised treatment of a work by third parties through limited licensing of rights.

(Sorry- I don't mean this to seem really pedantic)
Jonathan Townsend
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Neil, I try to keep my discussions as simple as possible and so suggested an example from which one might gain perspective.

Staying on topic for magic it remains something of a challenge to handle those who perform or sell "variations" of other people's work without permission...
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Neil_Brown
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Quote:
Neil, I try to keep my discussions as simple as possible and so suggested an example from which one might gain perspective.

My apologies- I didn't mean to undermine what you said- I didn't appreciate that it was an example, rather than a definitive statement on the scope of copyright. (For example, photocopying a colleague's set of instructions would be an example of non-sale related copyright infringement in a magic effect - to try and bring in a magical example Smile)

Quote:
Staying on topic for magic it remains something of a challenge to handle those who perform or sell "variations" of other people's work without permission...

Completely agree- especially where something is a gimmick, and arguably not copyrightable in itself. If the variation were a mere adaptation of a copyrighted work, then, I would have thought that there were less confusion, though (for example- translating a set of instructions into a different language).
Parson Smith
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The original statement was made when I asked the person about the feasability of doing a "compilation" of certain tricks.
I do not know if this is a clear enough explanation or not.

Maybe we could consider something like, "The Very Best of Mark Wilson," or other works of that nature.
Peace,
Parson
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JackScratch
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Quote:
On 2006-06-05 09:32, Neil_Brown wrote:
Quote:
I would like to add that you can not copyright an action, or concept of an action. As such, if the workings of an effect can be suitably reworded, you can the publish them as your own.

Agreed- this is exactly what I meant with the concept of the idea / expression dichotomy.

Quote:
Many people want to copyright (or whatever it would be called) intelectual property.

Sorry- I got a bit lost from here on. Copyright is a form of IP, so, I am not quite sure what you mean by "copyrighting... intellectual property"? (In any case, I'd suggest that the correct protection for a series of moves (a method, essentially) would be a patent.)


copyrighting "ALL" intellectual property. In other words, things that we are discussing in this thread not covered by copyright, pattent, etc, would be.
Jonathan Townsend
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As things stand it is both legal and ethical to publish, sell and offer anything that is not EXACTLY a copy of another thing protected by copyright.

Likewise it is both ethical and practical to offer trivial variations on themes.

So, unless the market in magicdom cleans itself up quickly, another generation is going to be wallowing in material that ceased to be relevant about fifty years ago.
...to all the coins I've dropped here
Neil_Brown
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Quote:
As things stand it is both legal and ethical to publish, sell and offer anything that is not EXACTLY a copy of another thing protected by copyright.

Again, sincere apologies if you were simplifying things (I don’t mean to come across as countering everything you say, I promise! I’m a nice guy, really!)- however, in the hope of clarification, I’ll try to expand on this a bit.
Whilst the section copied would have to be an “exact” copy (because, arguably, it’s not a copy otherwise, it’s an adaptation / derivative work), you do not have to copy the whole of a work to infringe- you are not able to copy a "whole or substantial part" of something (at least, that's the case over here- may be the US is different?). "Substantial part" is measured qualitatively - if there was a book full of rubbish, and you copied the one good effect, then, I'd expect this to be classed as a "substantial part". A good rule of thumb (albeit one which works better with music) is to consider that, if you played that copied segment in isolation, would it be enough for the listener to know where it came from. If so, chances are you have copied a substantial part of a work. In terms of a magic-related example, if you released a new card trick, and copied a substantial chunk of Alex E*****y's original wording for the E*****y Count, for example, you'd be infringing his IPR, even though it may only be a part of a larger work (your effect uses the E*****y Count, rather than solely is the E*****y Count).

Similarly, if you took the Count and changed the word “card” to “pasteboard” all the way through, your copy would not be “exact”, but, you would be copying a substantial part, I would have thought, and hence be infringing.

(Jonathan- if you see the situation otherwise, I’d really appreciate discussing it with you, either in this thread of in another thread. I’ve toyed with the idea of writing a (non-legal advice!) guide to IPR in magic a couple of times, but have always been distracted by other projects (mainly developing my own routines). Also, the problems of variations in national laws mean that, if I wrote a guide based on IPR under English law, chances are it would be different under the Copyright Act in the US (or the US patent legislation, where applicable- for example, you have enhanced damages for wilful (knowing) infringement, I believe?)

Quote:
Likewise it is both ethical and practical to offer trivial variations on themes.

If I bought an effect, changed a slight section of the instructions and began selling it myself, I'd expect to be sued for copyright infringement. For example, if you took the instructions for a card trick, and made slight variations to allow it to be performed with, say, Happy Families cards for children, I reckon you'd be hard-pushed to argue that you had not copied a substantial part of the original routine.

Quote:
copyrighting "ALL" intellectual property. In other words, things that we are discussing in this thread not covered by copyright, pattent, etc, would be.

Ah- thanks for the clarification - I see what you mean.

Quote:
I asked the person about the feasability of doing a "compilation" of certain tricks.

I would suggest that, if you are thinking about doing it commercially, you should contact a solicitor specialising in IPR. However, in my opinion, as long as you write the instructions for the effects yourself, you are probably on safe ground (subject to any patent rights in the methodology / effects).

Taking one trick from several magic books and putting them into an anthology, without getting a licence to do so, would still be copyright infringement, in my opinion, unless that one trick were not a substantial part of a work in itself (and, remember, the individual effects might themselves constitute works (as might images in individual effects, to break it down even further), rather than the book as a whole).

You’d need to examine exactly what tricks you were looking to include – if you were looking to include routines from old instructions (70 years since the death of the author, over here, at least), then the period of the copyright may have expired, and the work may be in the public domain. Similarly, if you want to include a particular effect, you could always ask the originator if they would be happy for you to include a version (or a direct copy of their instructions, even) in your book- if you can get permission, and get a suitable licence agreement in place, then, you shouldn’t have a problem. If you have an interesting “twist” on an effect, but which would still require the copying of a substantial part of the original effect, the originator might be happy to licence you the necessary “original parts”, and then let you sell you twist as an all-in-one item. Alternatively, you may have to say something along the lines of “If you use David Houdini’s “Gibbon-to-Showgirl” illusion, I have found that it works better if you use a piece of clothesline, rather than the original thread, to cause the gibbon to be hauled into the fly-space” – you do not infringe the copyright in the original, but still get your new idea across.

Ethically, I’d suggest it’s a controversial matter. Imagine you came up with a brand new trick, which you enjoyed performing in your shows, and which became a “reputation maker” for you – people hired you to see you perform this particular trick. You then discover that someone who saw your routine has written a sequence of instructions on how to perform the trick, and is selling them to the magical community. You now have 150 people all performing “your” effect, diluting your bookings. Legally, they are probably on safe ground, I’d have thought, but, ethically, I suggest it’s somewhat questionable. If the routine was published off the back of someone seeing your performance, it’s possible that no IPR have been infringed, but, would the magic community accept that it was an ethical thing to do?

Magic is interesting when it comes to intellectual property, in that there is a level of interpretation between the input and the output. Whereas, with a piece of recorded music, for example, what you write onto the CD is essentially what you hear when you play the CD, with magic, the reader has to interpret the instructions that you have written. As such, two people could write entirely different instructions, and end up with an effect which looked very similar. Similarly, two people could read the same instructions and still make the trick look different.
In terms of copyright, there is nothing wrong with watching someone’s effect, and then writing your own instructions on how to perform it so that your effect looks the same, from what I can tell; in the music world, if you listen to a song, and then write the same song, so that it sounds the same, then you are potentially infringing the copyrights in the song (literary, musical etc). This comes down to the layer of interpretation, in that what the audience sees is not the work in itself- it is a routine based on the work, really. Taking a magical example, if you were to sit and read Timothy Wenk’s instructions to “Misled” as a performance, then, I’d expect a copyright infringement suit to follow, as you are actually performing his work (which is an act restricted by copyright). However, if you were either to perform the effect you purchased, or else come up with another way of “melting” a pencil through a note, and performed that, I can’t see there being a problem (unless you used large chunks of provided patter, although it’s arguable that you might have an implied licence to use this).

At the end of the day, nothing can beat advice from a lawyer specialising in IPR – if you’re going to take a risk, or are worried that you are taking a risk, at least take it with your eyes open. None of my comments constitute legal advice – they are just my thoughts and comments on this issue Smile
JackScratch
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Quote:
On 2006-06-05 23:14, Jonathan Townsend wrote:
As things stand it is both legal and ethical to publish, sell and offer anything that is not EXACTLY a copy of another thing protected by copyright.

Likewise it is both ethical and practical to offer trivial variations on themes.

So, unless the market in magicdom cleans itself up quickly, another generation is going to be wallowing in material that ceased to be relevant about fifty years ago.


Ethical? I think not.It may be legal, but most of what you are calling ethical is just downright moraly wrong. The problem we have here is that our world could care less abouyt ethics and morals. By our world I mean the whole thing averaged, not just magicians. It is in no way, shape, or form ethical to reword someone elses work and sell it as you own or even publish it for that matter. Doesn't stop a whole lot of people, thus exposure, well part of exposure anyway. Ethics and law are not related. If they were we wouldn't have lawyers and/or politicians.
Parson Smith
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OK,
For further clarification...
I was speaking to a person who had written/published books of magic.
I specifically asked if I could use one of his "tricks" in some of my writing.
That is when he responded, "Magic tricks are not copyrightable."

I am enjoying your comments.

Jonathan, I always love your writing, even when I am too dense to understand it.
Would you please explain what you mean by the following. (Simply, please.)


On 2006-06-05 23:14, Jonathan Townsend wrote:


"So, unless the market in magicdom cleans itself up quickly, another generation is going to be wallowing in material that ceased to be relevant about fifty years ago."

Peace,
Parson
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Jonathan Townsend
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If it's okay to take people's published works, and even their published works and sell them without permission in magicdom... why would those who invent new magic bother to expose themselves to such a market? Why offer good works to a market which reduces secrets to trivia and good magic to mere trickery?

For example, Half dollars and silver dollar coins common use about twenty years ago. Another example, silk pocket squares, canes, tophats and even neckties are pretty much out of fashion, as are silk scarves. Yet in the catalogs, there these things are... as it it were the days when folks had such things as everyday items. Got spats?
...to all the coins I've dropped here
Neil_Brown
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Quote:
I was speaking to a person who had written/published books of magic.
I specifically asked if I could use one of his "tricks" in some of my writing.
That is when he responded, "Magic tricks are not copyrightable."

Ah - okay. You want to use a published effect in your own writing.

I'd suggest considering the follow things with a lawyer:

1.) Is his material copyrighted? (Has he released his book under a Creative Commons / copyleft-style licence? Has the period of protection elapsed? (To do this, you'll need to work out what rights are present in the work)(However, if you've spoken to him recently, then, the period of protection probably hasn't lapsed anyway!)

2.) If the magician in question says that "Magic tricks are not copyrightable", he shouldn't have a problem licensing you any copyright which might exist in that work. If you can get a licence, granting you all necessary rights to reproduce the work (preferably along with an IPR indemnity supporting a warranty of non-infringement) then that would probably be the easiest thing to do. However, if he has a publisher, he might not own the copyrights, or might not be able to license them to you if he has sub-licensed them to a publisher - as such, it would be worth checking it if were a "home" publication, or if he has a publisher. Basically, check who owns which copyrights.

3.) Alternatively, you need to ensure that you are not infringing on his copyrights- if you are not infringing, then you need no permission. Assuming that his book met the requirements for copyright, you should firstly work out what rights are protected in the trick. For a start, there is likely to be a literary copyright (in the words), an artistic copyright (in any images / illustrations) and potentially a typographic right in the published edition (layout on the page) as well.

Have a think about what exactly you are planning on doing - did you want to copy a whole or substantial part of his instructions, or just utilise one of his moves in a larger routine of your own? If you want to copy chunks of his text, then, chances are you would be infringing his copyright, but, as discussed at length above, if you merely want to take ideas, and present them in your own way, chances are you would be fine (idea v. expression dichotomy).

If he doesn't care about his copyright, then, perhaps your chances of getting sued for infringement are low- however, if he doesn't own the copyright (for example, it is with the publisher), then, it may not be his decision to waive copyright, and you may end up being chased by a publisher.

Take the book in question to a lawyer, and have a chat with them about it - if you are planning on doing something like this, I can't recommend proper legal advice strongly enough. Although I hope my comments are of use, they are not legal advice, and so shouldn't be relied on.
leapinglizards
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My two cents would be:

If the pblisher/author responded that way, they were basiclly saying "You don't need MY permission." If you don't quote the actual text, you can certainly base one idea off another and share it.

On the other hand- I think you did ENTIRELY the right thing by asking! That shows class and integrity.

We wrestled with similar issues recently for our new book Dustin It off, much of which is routines creted for or adapted from standard magic from Tarbell. In most cases, we decided to direct people to that bok for the DETAILS of the methods, and encourage them to support that publisher as well, while sharing our original ideas with the reader in whole.

In this way, we supported that publisher, and kept our integrity as well.
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Neil_Brown
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Quote:
On the other hand- I think you did ENTIRELY the right thing by asking! That shows class and integrity.

Completely agree. I think that there are some stories elsewhere on this forum where magicians have asked other magicians if they might use parts of their patter / routining themselves, and have received positive answers. If you're asking, you are acknowledging that it is their work, and that they have the option of saying yes or not - if you just take it, you may be regarded as completely overlooking their rights.

Quote:
In most cases, we decided to direct people to that bok for the DETAILS of the methods, and encourage them to support that publisher as well, while sharing our original ideas with the reader in whole.

In this way, we supported that publisher, and kept our integrity as well.

I'd agree with you, Mr. Lizard - this was exactly what I meant with my "Gibbon" example above-

Quote:
Alternatively, you may have to say something along the lines of “If you use David Houdini’s “Gibbon-to-Showgirl” illusion, I have found that it works better if you use a piece of clothesline, rather than the original thread, to cause the gibbon to be hauled into the fly-space” – you do not infringe the copyright in the original, but still get your new idea across.
CJRichard
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By the way, procedures, formulas and recipes cannot be copyrighted.

In other words, anyone in the world can publish and sell the method to bake chocolate chip cookies.

The method of accomplishing a specific effect seems to fall into this category. "Under the cover of the foulard (Where else have you ever seen that word used?) the g*****k is attached and by manipulating it, the b**l appears to fl**t." That really cannot be copyrighted. It's a procedure, like how to bake a cake or how to build a shelf or how to plant a tree.

Period.

A scripted routine can be copyrighted. A set of instructions with particular illustrations and tips on presentation can be copyrighted. (But a different set of instructions with different drawings or photos for the same effect could be published and copyrighted by someone else, too.)The name of a particular object could be a registered trademark. (FRISBEE is a registered trademark, but anybody can sell another flying disk toy under another name.) I don't know if ZOMBIE, in reference to a chromed ball used for a particular magic effect was ever registered as a trademark. If a trademark owner does not actively protect his trademark, however, it can be judged a generic term. (ASPIRIN was once a trademark, but it isn't anymore. KLEENEX still is protected and nobody but KLEENEX can sell KLEENEX.)
"You know some of you are laughin', but there's people here tryin' to learn. . ." -Pop Haydn

"I know of no other art that proclaims itself 'easy to do.'" -Master Payne

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