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The Magic Cafe Forum Index » » Right or Wrong? » » What constitutes stealing? Concept of ownership of original material (0 Likes) Printer Friendly Version

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garcia00
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After my education thread was so well received (LOL), I will stir the pot with another controversial topic.

When I listed some tricks I did, and where I got them, I mentioned Ricky Jay, and a couple members went through the roof. (Well, that is an exxageration). So I would like some discussion on what constitutes ownership. I will start with my example, then a couple hypotheticals.

First off, let me say that using someone's patter, whether with or without attribution is just lame. Similarly, copying someone's effect (Josh Jay with the remote control for example), is lame. Whether presented at a lecture or in a book or just stolen from the performer. This is not what I am talking about.

Can I do a Mercury Fold and have the card appear in a card case. I would say I can. Josh Jay owns the idea for the card to appear in a remote. I have a lot of trouble extending that ownership to having a card appear in some other location.

Moving to Ricky Jay, who I cited when speaking of MacDonald Aces (which I believe he adapts for his 4 queen trick, but am unsure of his actual method), the thing I do is rather than just strip out the aces and then start MacDonalds, I want to effect a switch of the Aces. So I strip them out, insert them in the deck after doing something with them to let the spectators see they are genuine, (using some sort of top switch), except for the Ace of Spades, the leader, who goes in face up. A couple faros, and I display that the other aces are face up and strip them out, effecting the switch. Jay does a pop out move of the queens. The thought of copying this move is lame, it is his presentation. I just fan the deck.

Jay then does some sort of switch after displaying the indifferent cards, before getting into position with 4 queens (aces in my case) each covered by 3 indifferent, face down cards. I don't like Jay's vanishes, they are not progressive; I use some ideas from Focus and some of my own.

Point being, I don't think anyone owns the idea of reversing the aces in the deck prior to doing macdonalds aces. I use a similar technique to swap in the gaff for 7 card monte. I prefer to swap in the gaff after the spectators have handled the card, and the reversal is simple and effective.

By the same token, does Jay (or anyone) own the idea to swap in the real aces in MacDonalds after displaying the indifferent cards.

Does someone own the double lift? Obviously not.

I think presentation is unique and sleights are not. Plain and simple.

What about a new sleight, though?

If you see someone perform a sleight you have never seen before, are you free to use it, assuming you can figure it out? I think this is the real tough issue, and I tend to feel that if an originator performs a sleight that can be figured out, then it is in play. I can improve it by doing it better. If someone told me how the person did it, and I did not figure it out on my own, then I would tend not to be interested in it.

Comments, hopefully with less flaming..........
aiki
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I remember reading of a couple of old magicians that would not perform for any other magicians. They did this so that the other magicians would not be able to steal their sleights. Basically what you are talking about has been going on since time began.

I think the only thing that really gets any type of protection by other magicians is the individuals performance style and patter, unless they release these in a book or lecture notes. Also how many times has something been credited to a performer then someone else comes a long and shows that someone else had been doing it that way for years before. I think we have to remember that there were very smart magicians years ago that could handle a deck of cards and probably did stuff that was very similar to what people perform today but they lacked the ability to document what they did in writings or on film.

Just my 2 cents.
Ray K.

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ursusminor
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Quote:
On 2006-08-10 10:26, garcia00 wrote:
Can I do a Mercury Fold and have the card appear in a card case. I would say I can. Josh Jay owns the idea for the card to appear in a remote. I have a lot of trouble extending that ownership to having a card appear in some other location.



Joshua Jay sells his remote at lectures, as long as you buy it from him, ther isn't any problem...

Bjørn
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pick themselves up and hurry off as if nothing happened."
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magicfish
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Read Darwin Ortiz' comments on this subject back when he was interviewed here at the Café.
garcia00
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Not seeing any subject in the Jan. 2003 Ortiz thread which addresses this issue.

Got a link?
Vandy Grift
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Third one down. "The Herd Mentality" http://www.themagiccafe.com/forums/viewt......87&0


"Magicians have many ways to rationalize this kind of parasitic behavior. “Hey, Ricky didn’t invent the trick!” Maybe not, but he didn’t research, discover, and perfect the trick so that lazy magicians could come along and say, “That’s good. I think I’ll do it too.” An extreme example of this occurred some time ago when a magician ripped off Del Ray’s brilliant act using performing toys. His rationale was, “Automata go back to Robert Houdin.” True, but this magician didn’t get the idea from Houdin; he got it from Del Ray."

P.S. Del Ray was one of those "old magicians that would not perform for any other magicians" guys that aiki refered to. For the reasons that Mr Ortiz talks about in the above quote.
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Jonathan Townsend
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Quote:
On 2006-08-10 10:26, garcia00 wrote:...if an originator performs a sleight that can be figured out, then it is in play. ...


If it's not in print you will quickly lose the trust of others who invent things. If you show such a thing you saw and figured out to others, you will likely lose the respect of all of them who know the inventor. If you simply MUST play with something you figured out after seeing, it's probably better that you keep it to yourself till you get the inventor's permission or it makes its way into print.
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garcia00
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I saw and met Del Ray in Pittsburg when the IBM convention was there. What was that, 20 years ago? Nice guy. The idea of doing his routine is, of course, silly and lame.

I agree completely with the Ortiz post. I find it a little contradictory with the post where he discusses his performence of some classics without modification. But they can be reconciled.

>Some even call stealing the repertoires of working pros “seeking inspiration.”

Again, differentiate between a sleight, a trick, and a routine. I think as you move up that continuum, the theft argument becomes stronger. Lifting someone else's routine is just complete laziness.

However, I do not think that any magician owns the double lift, bottom deal or the classic palm. Ricky Jay does not own the Braue Add-on (if that is what he uses-it is what I use), nor does he own the concept of using said move in MacDonald Aces. I was trying it in the late 70's. However, at that time I did not know the Braue. When I read Focus, it clicked that that was the way to switch the packets.

As for a new sleight, I am not sure there is such a thing. When I see one, then we can address that issue. Every sleight I have caught in the last 20+ years I have learned about from my library. Most "new" sleights look to be merely personalizations/variations of existing moves. Unless the tick/routine is copied, the variation of the sleight is probably of little use.

So, summarize and get back on point....

Lifting a routine is just plain lazy and stupid.

Lifting a trick that has been published is okay (but I think it is lazy, although there is not a lot to change with something like Triumph).

HOWEVER:

I am addressing using a sleight another has used, which you are now using in a different context. In other words, I have seen the move, researched and learned it, and now applied it to my own routine.

Am I being told that that is somehow out of bounds?

Or put another way, if I observe Ricky Jay (or Del Ray, or [substitute the name you wish]) perform what I think is the Braue add-on, am I allowed to use it in another routine. Am I required to relocate and identify the name of the sleight and it's origin (using my volumes of Apocalypse is time consuming, but Focus is a nice resource for sleights)?

I think this is the type of inspiration people should get from watching others perform.

Along the lines of, hey, that was a clever way to reverse the card. Let's play around with the move and see if it is something I can better my existing routines with.
Jonathan Townsend
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If the item is in print or you have the inventor's permission it is expected that you use it to your advantage in ways you see fit in routines of your own design. IF you feel compelled to publish the routine it is also expected that you cite published sources and acquire permission to mention or teach unpublished works.

A failure to cite and acquire permissions when publishing a routine can lead to complications.

As to using what you see without knowing its origins... that is lazy and can easily lead to consequences if you are using unpublished methods. Likewise by not doing your homework you may spend much time reinventing wheels that have beeen in print and working for many years.
...to all the coins I've dropped here
Noel M
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Unfortunately magicians don't have anything like ASCAP or BMI to collect royalties. If they, did this issue would not exsist. Thus is a problem for magicians performing for magician. If I stole just about any magicians act, and performed it move for move to absolutely everyone I know, none of them would have a clue it was stolen.

I don't condone stealing but it exsists, and I think the reason it does is because of lack of creativity among a large portion of magicians. Even among those who pay for the trick or book or DVD do it to use the creators routine. How often in the Café do we see someone describe their act as Daryl's something, followed by Vernon's something else, then finished with Kennedy's whatever. There no originality just performance rights.

Knowing that the high propensity of stealing, originators of effects need to be aware of the risks they run by putting anything before the magical community. For every one DVD sold perhaps 5 people watch them. A group of a few magicians can buy one DVD each and circulate them.

Stealing is wrong but if you don't want to be a victim, keep your material to yourself.
TheAmbitiousCard
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Here are related issues that may need clarification:

1. You buy a published performance only video.
Is it assummed that you have the right to use the material?
Are all performance-only media considered off limits?


2. You buy a DVD only to find out that in the intro on the DVD
it says "All TV and Trade Show and cruise ship rights reserved".
But nothing in the advertising material or the promotional material,
or the box art says anything of the kind. So you're being limited AFTER you bought the product? What's up with that?


3. You read Magic Magazine and within is a trick you like.
Its method is described in great detail. Included in the verbiage,
is a sentence that indicates that there are NO performance rights
allowed at all. It's all provided only so that a record of who
published it first is recorded


Discuss! Smile
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garcia00
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Perhaps I did not make the actual issue I am interested in clear and narrow enough.

I am concerned only with a raw sleight. Not a trick, not a routine, not patter nor presentation. Just a sleight.

Let's use the Braue Add on for example.

Is it off limits because Ricky Jay might be using it. Obviously not.

Can it be used effect a packet swap in Macdonald Aces, when Jay seems to use it (or a variation) for a packet swap in his 4 queen routine, which I believe is his original presentation of MacDonald Aces. How he does his version I do not know. I am just using Jay as an example because he integrates a Macdonald Ace like trick into a routine, which is my goal as well. The routine bears no relationship to Jay except that it is a variation of MacDonald aces. The lead in's are totally different.

Is the idea of integrating MacDonald aces into a routine off limits now? I don't see how.

Using MacDonald aces with Queens seems to be moving over the line. Using his patter is just pathetic.

But back to the Add-on.

Am I further understanding that in order to use a sleight, I must know its name, history and origin. I am finding that to be a pretty silly idea. I have read dozens of books over as many years. I know lots of moves I no longer know the name of. Am I expected to recite the name and history to some other magician who decides it is his role to quiz me. I have a real problem with that. I have to assume you mean if I am writing up some instructions, or lecturing or the such. In that case, I agree. However, I see no requirement that I know the name and history of every move I perform.

I think claiming to own a sleight is not possible. The best you can do is say that you can't find any record of the move. If someone else knows it, fine. I say this because I find it really hard to believe that there are any "NEW" card moves. Or new coin moves. Or new sponge ball moves.

If someone disagrees, please provide an example of a card sleight (only a sleight) that only one performer is allowed to use. I can't come up with any.
Jonathan Townsend
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Don't worry. You are not going to get quizzed. Though if you discuss material with magicians, you might be ignored after a few times of telling them you have no idea what sleights you are using or where they came from or where they have been used in context.

After a certain level (say getting through ECT or even Royal Road) folks kind of expect you to know what you are doing and what its context is within our literature.
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JasonEngland
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Garcia00,

If a move is in print, it's almost always yours to use.

If an effect is in print it's almost always yours to use/modify/improve/tweak.

If a routine is in print (by routine I mean presentational aspects or sequencing outside of the method itself) it's almost always yours to use.

There are of course exceptions. Some performers publish "performance only" routines (virtually exclusively on video or DVD). These routines, assuming they belong to the people performing them, are NOT yours to perform in any circumstances (formal or informal) though you may certainly play with them in the privacy of your own home. Even performances for close friends and other magicians are off-limits if the piece isn't yours to perform.

The routines are provided to inspire, entertain, perhaps illustrate a particular point, or any of a number of other reasons. But they're not yours to take and reproduce elsewhere for others.

Occasionally a performer will publish effect, method, and presentation, but withhold performance rights to one or more of those aspects (usually presentation). And sometimes a performer/author will release a complete routine, but restrict where (or under what circumstances) you have the right to perform it.

For instance, Michael Weber published the phenomenal LifeSavers but included a list of formal performance settings where he didn't want the material performed without express permission from him.

He then went on to grant permission to use any or all of a given effect or presentation in any informal (he used the term improvisational) setting at any time anywhere in the world.

So, out to dinner with your friends? Feel free to use anything in the book. Booked on the Tonight Show? Call first. It's that simple. Michael is reserving the right to be the first (or only) person to present these effects and presentations to audiences in formal settings. Is that so terrible? I think it's perfectly reasonable to want to protect your creations in this way.

Bruce Cervon is also cited from time to time as a guy who published a "whole book of things you're not allowed to do." This is of course a mischaracterization of what Bruce actually wrote in his book. He states that he holds television, video tape, lecture and first-person performance rights over conflicting acts.

Here, Bruce is allowing formal performances, as long as they aren't televised or videotaped, and as long as he isn't sharing the bill with you that night. If you want to perform an effect/presentation from that book on television, you need to ask Bruce. Otherwise you're ok. Again, perfectly reasonable to me.

I stated earlier that if a move or routine is in print, it's almost always yours to use. In addition to the examples listed above, it's possible that an effect was published by someone other than the author, and the routine has spread as a result. In my opinion, it's not yours to perform in any setting, unless you have permission of the owner/inventor. The Freeman Display comes to mind as a perfect example here.

This wonderful ace revelation has never been published by Freeman himself. Others have seen it and put it into print without his permission. It's off-limits as a performance piece, though you may certainly study it in private in an effort to find inspiration in the piece, or to maintain proficiency in the hope that he releases it some day (don't hold your breath).

That covers most sleights and effects. A final area is presentation.

There are some presentations that are in print, usually in older books and publications, that have been dug up, polished off, and presented by modern performers. A good example is Ricky's modification of the patter from Erdnase's "The Exclusive Coterie" and presented in conjunction with an assembly.

Now, doing an assembly to a modification of the Exclusive Coterie patter isn't in and of itself theft on your part. If you thought of it in 1960, you're probably fine. If you thought of it as you were watching "Ricky Jay and His 52 Assistants" for the first time, and are using the basic patter's publication in Erdnase to retroactively justify performing a nearly identical routine, then you're stealing.

What you're stealing is this: an idea. An idea that you didn't have. Someone else had it. It's easy to think (and rationalize): well, the Exclusive Coterie patter is public domain, and ace assemblies are public domain, so I'm home free! But you're not. You've taken from the originator the concept of marrying those two elements together in a cohesive whole.

The poem "Straight Tip To All Cross Coves" (this is the "Booze and the Blowens" poem) that Ricky recites in his act has been in print (in English) for over 100 years. But to present this poem right before your gambling set would be theft pure and simple. The poem is ancient, but 99% of us were not aware of it's existence until RJ presented it in his act.

There are other "intangibles" that you shouldn't simply take from another performer without permission, but I think this list will do for now.

Jason

PS: Frank, rights are reserved in this country (under existing law) regardless of whether the performer explicitly informs you of them. So, every time you buy a new magic book, the routines are not automatically yours to do with as you wish. You seem to be complaining about having found out you "lost" performance rights when you read the disclaimer. You never "had" them in the first place. I realize there is a long history of producing magic books as if they were cookbooks (you're supposed to eat everything inside whenever you wish). But these authors have always been able to at least attempt to restrict performance venues. Just because few have done so doesn't mean Weber or Cervon are overstepping any sort of ethical boundaries. Quite the contrary...they're both squarely within the boundaries.
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TheAmbitiousCard
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Quote:
You never "had" them in the first place.

I didn't know that. So when you buy a DVD or a book, what rights are granted to the purchaser by default, if any?
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J Hanes
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To me, and others like me, it really comes down to respect and appreciation of our art. Sure you can be a "creator", but unless you know the history of what you're doing, how can you lay claim to anything new? The most creative people I know are big into credits. The reason is clear, because they would like the same level of respect extended to them.
JasonEngland
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Basically none beyond reading and owning.

It's just like a music CD. When you buy one, you don't "know" in the legal sense what rights you're getting beyond being able to listen to the music.

You may (don't bet on it) be surprised and find that the copyright owner has granted you public performance rights to the music and lyrics inside, public broadcast rights to the original recordings, etc.

But you don't take these rights for granted. It's fairly common knowledge that you can't do much beyond listen to a CD you've bought, make a back-up copy (this is a relatively new area of the law) and resell it if you're tired of it (destroying any back-up copies of course).

Magic books are similar in the sense that you don't know what rights you're getting in an absolute sense until you open the book, or are able to speak directly to the owner/author ahead of time.

Again, I acknowledge that there is a long history of magic books being published by the hundreds where the authors DID expect you to learn and perform their material. That's why they sold it in the first place. And almost none of those authors took the time to expressly grant you those performance rights, it was always just assumed that if they didn't say otherwise, you were free to use them. This is still a reasonably valid assumption for most magic books.

But, if the author DOES choose to limit the rights we usually take for granted, he is well within his rights to do so. (I use the word "limit" hesitatingly, since I still maintain that performance rights are granted, not taken away.)

But you get the idea.

Jason
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garcia00
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Nice points.

As to the Freeman Display, I am not familiar with it. I will assume Steve Freeman. I would say that if it is like how Ricky Jay pops out the queens in 52 assistants, it is out of bounds. If it is some variation of an elmsley or ascenio, then I am having a little trouble with that. I would have trouble claiming some variation of one of those moves was mine if I devised it, regardless of the amount of research I might do to make sure I was first.

As to a published book or DVD, I think that if the explanations are given, and no rights reserved, then all of it is fair game. Any rights may be explicitly reserved and should be respected. The seller should also make sure those rights are reserved explicitly BEFORE the purchase. If deception is employed in the sale, making the buyer think he gets the rights, then the seller loses them, IMHO.

As for a DVD without explanation, then no rights are given (my son loves the mind freak and wants to know how each thing is done, so that comes to mind).

On the other hand, I think if you want to learn these and show them for no profit (and that includes not using them to get other bookings), I don't have a problem with that. I feel the same way about music. The school band can play a new pop song, but they cannot sell it. That might be a sore spot with some, but I don't have a problem if profit is not made (I do have a problem with magic done poorly, tho, regardless of rights and the such).

Those talking about patter, whether original, or reusing old stuff in a new way, that is original presentation, and that is protected. If the originator has no problem with others using the presentation verbatim, I have no problem with it, but it seems kind of lame.
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Garcia00,

The Freeman Display isn't a "move" per se. It's an elegant way of shuffling to and displaying the aces. It is also not the move RJ used to produce the Queens in his show.

Publishing a book of magic without explicitly reserving rights is how it's usually done. Most of the time the authors don't intend to reserve any rights. Most of the time you're well-within the bounds of what the author intended for you to do when you perform an effect from these books. Just be aware that that isn't always the case.

Let me ask you a question. Why should the seller have to be crystal clear about what rights are or are not granted up front? It's not because of the law. It's because of your pre-conceived notions of how things "should" be. Change those notions, and you'll never be surprised. Disappointed maybe, but never surprised.

Don't think for a moment that if I bought a new book by a name magician (let's use Simon Aronson as an example) and found out only upon opening it that performance rights were reserved that I wouldn't be disappointed. I would. But as long as I didn't suspect duplicity on Simon's part (being "tricked" into buying the book somehow), I would make a decision: keep it and learn from the material, be inspired by it, even tweak it in the privacy of my own home (but not perform it informally or formally) or, sell the book back to Simon if I could.

Jason

PS: Your example of a high-school band using a pop song as long as they aren't paid may only be reflecting how you feel, but legally speaking they aren't supposed to do that. Any formal performance, whether for a fee or not is technically illegal, though usually not enforced at the level of a high-school marching band.
Eternal damnation awaits anyone who questions God's unconditional love. --Bill Hicks
garcia00
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Quote:
On 2006-08-10 20:48, JasonEngland wrote:
Garcia00,

The Freeman Display isn't a "move" per se. It's an elegant way of shuffling to and displaying the aces. It is also not the move RJ used to produce the Queens in his show.

Then it is LIKE the Jay pop out move. It is an original presentation. It is not a sleight. It is protected.

Quote:
Let me ask you a question. Why should the seller have to be crystal clear about what rights are or are not granted up front? It's not because of the law. It's because of your pre-conceived notions of how things "should" be. Change those notions, and you'll never be surprised. Disappointed maybe, but never surprised.

I think the majority of people who buy a magic book or DVD with explanation assumes it is theirs to use as they please. I would say any seller of such a work without plain language that rights are reserved on the cover and in advertisments is practicing deception. If they are willing to buy it back if the user is not satisfied, then that takes care of it.

Kohler and his hold out is a good example of exactly setting out what rights you get.


Quote:

PS: Your example of a high-school band using a pop song as long as they aren't paid may only be reflecting how you feel, but legally speaking they aren't supposed to do that. Any formal performance, whether for a fee or not is technically illegal, though usually not enforced at the level of a high-school marching band.



You forget Fair use doctrine

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
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