The problem is, you can sue the holy hell out of those who have signed the agreement, but not out of anyone else. Reverse engineering isn't covered, nor is anyone they tell selling your secret.

No reply from Mark2004 since his assertions on Dec 10, I see. Silence doth speak louder than words.

I says I've had work, I was ill for a while and I've been away, which means I haven't had been able to give this much time recently.

Let me try to go back over posts in the intervening period and have a shot at answering some of the points.

First trade secrets: As I understand it trade secrets law in the USA has parallels with aspects of confidentiality law in the UK. I agree that 'minnich_magic' is correct to state that this area of law is another tool which can legitimately be used to control rights to magic methods. Of course, as with other legal measures, the details and limits of this power can become quite complex - it offers a solution for some situations but it will not help you in others and you can find that certain things suddenly remove the protection.

Next, the following statement by 'minnich_magic':



That is an appalling twisting of my position which starts with a correct statement and bends it around into something that is the exact opposite of what I advocate.

I do assert that any idea or technique or invention or whatever should be available for anyone to use ONCE IT IS FREE OF ANY LEGITIMATE LEGAL PROTECTION OR CONTROL. That is the ethical position from which pretty much all IP law has been developed. The monopolies that IP law grants are always FINITE in time terms. Not even the massive media corporations who are lobbying greedily for extension of copyright duration are advocating that it should run for ever.

I resent deeply the suggestion that I am somehow saying "to hec with ethics" (sic). To some extent I believe it is parts of the magic community who are ignoring or perhaps overlooking a large body of ethical argument. By this I am referring to the substantial history of ethical debate that has taken place during the creation of our current body of IP law. Law and ethics are intertwined. Law is the primary means by which our society agrees and codifies ethics. What I have a deep problem with is magicians who talk about "rights" that they seem to wish into existance entirely separately from the legally established rights that pertain to all other creative endeavour.

I do not claim that law is the only morality. Clearly there are profound areas of ethics where there is still a great deal of room for debate and some areas where there always will be. However law is the means by which democratic society establishes what is broadly accepted as allowable or disallowed. It is not perfect (far from it) but it is tried and tested and it has passed more tests than any alternative yet suggested. People have cited religion and roman history in the debate on ethics, but what was said there does not override the basic position. We in Europe or the USA are free to choose (or not choose) a religion but that choice cannot free us from the law. Similarly, magicians are free to join magical societies and sign up to ethical codes but those codes cannot override law.

I don't advocate the manufacture or use of "knock offs" if the methods in question are protected by patents, registered trademarks or confidentiality law (or "trade secrets" law in the USA). Similarly I advocate that people should respect copyrights or registered trademarks which might cover aspects of a performance or presentation of a magic effect. But where these or other legitimate legal protections do not exist then illusions are fair game. Those who are quick to claim rights to a method or effect should bear in mind the principle of "prior art" - it is generally not possible to gain rights over something that has already been created by others. It is true, as 'minnich_magic' says, that new methodology is rare to come by. The same is true in most areas of creativity - true originals are rare and hard to create. In no case is it an argument for lowering the test of what is original.

It seems to me that one of the great recurring injustices in magic history is the way some performers have carved a name for themselves with particular effects at the expense of other good magicians when the effects in question were not necessarily entirely original. I'm thinking for example of the way Horace Goldin sought to monopolise the field of sawing illusions - I believe he even at one point prevented Selbit from performing his version. I know Goldin created innovative methods and I am aware that this is an example which also exposes failings in the legal system, however it does illustrate the propensity of star names to try to monopolise an effect beyond an extent that many people would find reasonable. The principle of "prior art", if properly applied, offers a way to counter such excesses.

I agree that if a magician or inventor does come up with something novel then they should have some protection that allows them to benefit fairly for their ability and endeavour. That is exactly what IP law is about and it is what I would uphold. One obvious reason is that it simply seems fair that people should benefit from their endeavours. But the ultimately more compelling reason is the practical one which says society as a whole will benefit if creative people have an incentive to create.

The point I was trying to get at when I started this thread is how long this protection should last for. It seems to me unrealistic to expect it to last forever. My view is the law has got it about right in terms of duration (forget for a moment the complexity and cost of legal systems, which does need to be improved). The attempts being made by media corporations to extend IP duration are cynical attempts at profit grabbing and their claims that they need the extra revenue to foster new talent is just preposterous pretence (from an industry that has probably thrown away far more indulging in excess than it ever spent fostering talent). I am with the body of opinion in the IP argument which says monopolies have a downside and if we grant them then they should remain finite.

Everyone, Mark2004 has presented here a very accurate description in the area of IP laws.
In no way is any of this to advocate against the protestion of someones invention.
The issue is and always has been ethics and morals are mostly an individual endevor and not always agreed to by others.
Laws were created to have a set of standards to work within since ethics can vary so much.
No law is perfect and anyone can sit back and point out all the flaws, or what they think are the flaws.
Some in the magic community think everyone should follow the same moral or ethical path, in fact they go far enough to brand individuals and companies that do not live up to their level of standards.
I would say once you can convince the magic community of abide by the laws then we can work towards raising the standards of ethics. Neither of which can be done until we all understand the laws as they are written.

Mark and 61, thank you! I have been saying this for a very long time.

C.L.

Thanks for the supportive comments '61magic' and 'C. Loubard'.

I have to pick up on one aspect of what '61magic' has said. This might be just the way I've read it so I apologise if I've misunderstood. In any case it is not a massive problem - just something I want to clarify.



I would say ethics and morals are a matter for society as well as for individuals. It's true we all have our own individual idea of what's right and what's wrong. But groups of people and society as a whole are capable of framing agreed ideas of right and wrong - indeed we have to do this in order for our society to function. The processes of making and implementing law are one of the key ways this happens.

What I was trying to say is that law and ethics are not two separate areas but are intimately linked. It is not a case of getting people to abide by the law so we can then deal with ethics separately. If magicians are unhappy with the situation regarding rights and feel that unethical practices are being allowed to occur then the right way to address that is to engage in the debate about intellectual property law. Write to your politicians about how you believe the law fails to give proper protection to magical innovators and lobby to get the law improved.

Of course, when I say law and ethics are linked I should add that law is also affected by vested interests and pragmatic compromises. But in the case of IP law the vested interests (certainly those with huge wealth) are on the side of extending the scope and duration of copyright and other IP powers.

Mark2004, as I reread what I wrote it is not very clear.
Laws are the base everyone is expected to minimaly comply with.
When I talk to people about ethics the answers vary so much as to how high the standard should be held, they seem to not understand the value of the law created to protect them.
My point is until everyone understands the laws at the base level and comply we will only ever agree to disagree.

What I see happening is people's emotions cloud logic.

61, you are correct; ethics are subjective. As personalities can be like, so can ethics, but being different is also expected.

Magic draws from a wide demographics. People are brought up differently, socially and culturally. Some people will want to follow the majority others will go against the norm, because they don't want to be the norm.

In school you have a great cross section of individuals, even in the same classes at the same time. Yes, the students who share a class are learning the same thing, but it doesn't mean they all share the same views on the subject. Certainly not having the same views on the subject doesn't make one person any more or less ethical than the other. To the person saying it is unethical for someone to be against the grain, it may be unethical. Then again, the person who looks to the others and refuses to be sheep like the rest might think it is unethical to be like the rest. In his/her mind, there's nothing wrong with being different than what the accepted standard is.

The question begs, however, what is the accepted standard? Well, that, too, is subjective; it all depends on what group you're hanging out with. In magic the accepted standard is to keep secrets. Folks like me, however, feel the secrets stop being secrets, when anyone has access to the information.

Is it wrong for me to tell someone how a trick is done from a book I picked up at a book store? It is no more wrong than me telling someone about first-aid I learned from a book at the same book store.

So, in magic, if one wants to control to who magic is given, only those that are of like minded ethics, then one has change the way the information is disseminated. The secrets of magic should be kept closer to the vest and only shared with like-minded individuals.

I don't feel folks like myself should have ready access to the information. Why? I'm not a magician, and my views of exposure vary greatly with those of the majority. Simply put, if I can buy it without signing an NDA or some other sworn to secrecy statement, I can do what ever I want with that information; basically, because the law says I can, and I don't feel it is unethical.

So then, there's the problem. Ethics mean very little when put up against the law.

It is, however, understandable when someone is so passionate about something, they may call someone a thief, even if it's not true. But don't get upset when that person gets upset for being called a thief.

Mark, I agree with you. Folks should take the logical steps to have a law inacted that best protects their interests. Stop making it about ethics and start making it about law is a logical first step. And once emotions can be stripped from the issues, a clearer path will reveal itself.

You're still missing my point. The law and ethics are not distinct and totally separate matters. Magicians are free to operate their own code of ethics in addition to the law, but no code can override the law. It is wrong to go around talking about "rights" to an illusion when no right exists in law. Magicians should stop burying their heads in the sand when it comes to ethics of trade secrets - these types of issue are not unique to magic, they have occurred elsewhere to one degree or another on many occasions throughout history and the ethical debates that have ensued have influenced IP law. To ignore that history and launch off into discussions about ethics as an entirely separate matter is like trying to re-invent the wheel while ignoring the discovery that circles are a neat idea.

Mark, No! I understood you completely, or at least I think I do.

you are correct, these issues are not unique to magic.

ethics and law and law can be parallel, and in fact have influenced law. In magic however, that isn't the case. We don't see people trying to be proactive in parlaying ethics into trying to make law. Instead, it appears many magicians are trying to create their own government, yet they continue to operate in an existing government, whose laws don't support those of magicians.

Forget magic, it can be anything. this is the very argument pro-medical marijuana states are arguing; the state says one thing, but federal law supersedes it. there is a clear division, and ultimately federal law will prevail. Until law can be passed think of ethics as state level, it's not going to supersede federal law.

I hope I am interpreting your views correctly, if not I apologize.

C.L.

Mark2004 has clearly made a decision to acknowledge the IP rights of illusion creators or performers only to the extent that IP law extends those rights. Very well then, let's confine the discussion to the law.

You state "I don't advocate the manufacture of knock-offs if the methods are protected by patents, registered trademarks, or trade secrets." The corollary you are indicating is, if the methods are not protected by the foregoing legal avenues, then any illusion is open season.

I would caution you and certain other readers that, just because an illusion creator has not sought IP protection by those means, that the greenlight is flashing for those wishing to plunder the fruits of someone else'e labor, expense, and ingenuity.

Why?
Consider this: Laws regarding the Right of Publicity are becoming more, not less, inclusive, and can provide protection to a creator to whom a novel illusion has become linked (e.g. Zig Zag with Harbin). The Protection of Magician's Secrets, edited by Glen Weissenberger has an entire chapter on the Right of Publicity. Although the breadth of this law varies from state to state, it has been used with regard to illusions, as early as 1922 (Horace Goldin vs. Clarion Photoplays). I won't go into the details of that case, you can read for yourself. Suffice it to say Goldin won an injunction against Clarion, based on Right of Publicity. This is different than the hotly debated battle between Selbit and Goldin you mentioned.

C.Loubard states, "Ultimately federal law prevails". Not necessarily so when it comes to Right of Publicity cases.

I am not a lawyer, and most reading this are not. The point I am making is that we should put ourselves in the inventor's/ exclusive performers' shoes and ask ourselves what we would want other fellow magi to do before considering an illusion to use in the show, or to manufacture. Make phone calls to them, lest we create problems later that result in legal entanglement. Asking permission is a much more cost-effective approach, don't you think?

And by the way, not all IP protected by law specifies a finite time period- trade secret agreements and right of publicity are two examples.

Regards,
Tom

Tom, I think you missed the point. local, state, law was, in my description, akin to ethics. Law supercedes that, regardless of it being on a local or federal level.

I understand where you feel we should put ourselves, but again, that's your feeling. Sure, many may agree with you, but there is no law that says we have to; I certainly don't feel I should, and there is no law to tell me otherwise. Again, it comes down to ethics and what you believe to be ethical.

The right of publicity, can not and will not protect anyone from exposing the secret. An act can be protected like a play and an illusion can be patented, but the secrets are not an can not be protected, unless the person revealing them had signed an NDA or was sworn to secrecy some way. If, however, a person reversed engineered the secret to the illusion, no law could prevent him/her from revealing that secret.

And by the way, patenting an illusion will make the secret public, so there is the problem.

Maybe I didn't make myself as clear as I thought. I meant that illusions are fair game as long as they are not covered by some form of legal control. I agree that there are other measures that might be used to control use of a method or effect. But I question any use of the term "rights" that isn't founded on law.



Right of Publicity seems to be something peculiar to the USA - and even there it doesn't seem to be consistent because it varies from state to state and there is no federal legislation. In Europe and the rest of the world there would seem to be no direct equivalent. Certainly it doesn't have the status of things like copyright, trademarks and patents, which have become standard internationally thanks to mechanisms such as the Berne Convention.

I did mention trade secrets - although I believe that the more general term for that type of law is confidentiality. In the UK you would sue for breach of confidence if someone disclosed material that had certain qualities which categorised it as secret or private. One of the problems there is that in some cases the protection is lost once the material leaks out (see the Peter Wright/Spycatcher case, where not even a government and it's secret intelligence agencies were able to use confidentiality law to block publication of secrets).

One developing field of law that might relate to the type of publicity-related cases you mention is that surrounding celebrities who are trying to control the use of their image in the face of the paparazzi and associated media. The trouble there is most new developments (in Europe at least) are in the field of human rights law protecting privacy of individuals and families. I'm not sure that's relevant to intellectual property type situations. I could go on and talk about other areas of law that have been used in publicity cases (such as defamation/libel, where there are examples of public figures successfully suing firms that used their likeness).

But I'm not sure how relevamt these things are. The fact is that the internationally recognised definition of intellectual property law revolves around copyright, patents and trademarks. The foundations of that body of law include a fundamental principle that monopolies have a downside and there has to be a trade-off between the interests of creators and the interests of the world as a whole, which means monopolies are generally to be granted on a finite basis. The major exception is trademarks, which can endure. It might be possible to register certain effects of certain pieces of apparatus as trademarks, but I think there are difficulties that prevent this being a universal answer for magic inventors. I would be interested to hear of any instance where this has been tried...

As C. Loubard sees it:
"I understand where you feel we should put ourselves, but again, that's your feeling. Sure, many may agree with you, but there is no law that says we have to; I certainly don't feel I should, and there is no law to tell me otherwise. Again, it comes down to ethics and what you believe to be ethical."

C.L., So we agree to disagree. I don't intend to change your mind, and you certainly won't change mine.

For readers teetering on the fence of this issue, they should be informed of the potential legal consequences of their actions. And for creators or performers new to this subject, they should be informed of the various avenues of IP protection through the legal system, at least as it exists in the U.S.

I appreciate the comments of Mark2004 in his post this date. I join with your views regarding monopolies, generally speaking. Regardless, the topic you started with, dealing with the duration of IP rights, cannot be pinned down to a specific number of years, simply because of the variety of legal means to protect IP, some of which have no term limit.

Tom

Tom - if any of what you were hinting at were viable - there would be lots of very poor coin guys, bankrupt publishers and a general fear of being seen as a copyist in coin magic. Alas - and I hope for the betterment of this generation of coinmen such is not the case - yet there is always hope that some will start to let their self respect overcome their desire to "monkey see - monkey do" and find their own way.

In the mean time - feel free to walk on two feet and find your own path. I wish you the best and will help where I can.

Tom, I keep reading your post, and I get the feeling we're thinking of different situations.

Are we discussing illusions or effects that haven't been marketed, or those that have?

The Greatest Illusion in Magic " ETHICS:
Magicians do not understand the relationship of Copyrights, Patents, Reverse Enginerring, and Public Domain. Magicians have created this idea of policing manufacturing rights for certain builders without any sort of notion that this is illegal activity. Many of you should read up on Rico laws, restraint of Trade, and act of unfair business.
These laws make restraining trade or harassing someone who has the legal right to be competitive in a marketplace illegal. Public domain in the field of a magic illusion is this. If someone creates a new illusion that is Novel and Unique and is generaly unknown, then it their right at that point to patent that item. Ideas are not protected. If that same person who created this new illusion takes it out into a magic show and performs it for the public, he has gave it up to public domain because the Novel and Unique aspect is gone. That is his fault.
Previous posts that state that Performance Rights exist is NOT TRUE in relationship to a magic illusion. There is a thing called "Rights to Perform" in the copyright bundle of rights which relate mostly to copyrighted music or things like plays that can be copyrighted.
Dancing around an illusion with music is not in this catagory. If you make a DVD of that performance, that is protected. Permorming Magic illusions with mechanical devices such as most ilusions is not protected. It is illegal for the magic community to bully up to builders who may not be their friends or not known to them and to illegally restrain trade. That will end up in lawsuits eventually and the people behind this activity will lose. Everyone in the magic community seems to believe that if a person makes a competitive magic illusion it is inferior. That is how things improve through being competitive. Any manufacturer has the same right to compete for a living just like all magicians have the right to compete for a magic booking.
Magician have never established any sort of venue to fairly establish if a magic illusion is original and not just a variation of another illusion.
Here is an example: David Copperfields Death Saw Illusion. Go look at Linking Ring Magazine March 1965 you will find the Sawing illusion David claims as his own. The saw blade dropping slowly until he escapes is in September 1969 Genii Magazine under The Magic of Japan. Yet Copperfield is officially listed in the magic trade as the creater and magicians have harrassed many, including myself for our own version. There are many other examples.
To me the Greatest Illusion in Magic is Ethics.
I can provide copies of these references if requested

Hello Jeff,

Well come and get me. Bring your own cuffs cause the ones I have might be houdini's.

In all the rants that you may have read here on the Café ( not sure how many you HAVE read as you are a new member) I doubt you'll find any in which any of us who support ethics is saying the person building knockoffs is breaking the law.

We are simply saying its bad behavior and not something that we want to support. Most of us who are SAM members or IBM members all signed a pledge to respect the creations of others. If someone decides to not follow that code of conduct then the rest of us can surely state our opinion that its not something we agree with.

Please don't try and scare us with any legal mumble jumble. If you decide to build a knockoff the law will protect you the same way it will protect me if I want to voice my opinion that I don't like the fact that you do.

Would you care to test your theory???

Lets give it a try. LOL

Regardless who created it... someone other than you did so I am offended that you would sell it without permission. I think you are not acting in an ethical manner and I would not purchase it from you. I would ask other magicians NOT to as well.

There you have it. I'm waiting for a lawsuit.

PM me and I'll email you my mailing address so you can give it to your attorney to start your lawsuit. We'll see how far it gets.

Smoking is a LEGAL activity and cigarettes are a LEGAL product but I see ads all the time telling me NOT to buy cigarettes.

Ethics DO exist in magic. Maybe not in your experiences but it surely does in mine.

Best,

Tim

Is this one going to be with gloves or bare knuckle?

Ding Ding...

M4U - IMHO the greatest illusion in magic is that tricks can give someone the things that come from self respect. Tricks are NOT a social crutch. Audiences are VERY attuned to whether or not you are sharing, giving, caring and especially if you like them or not. No trick can make you seem clever. No gimmick can give you the same respect as what you can get when someone notices that you are doing something FOR them. But there sure is lots of money to be made keeping folks distracted from this sort of knowledge.

Ethics? That starts with both self respect and a general feeling of certainty that behaviors which are "wrong" will be punished by the rest of the group up to and including ostracism. As long as our group is just urchins in the marketplace of second and third hand works - it's gonna be a while before we get to having ethics.

Be that as it may, you get to choose how you behave, how you respect yourself and how you respect others. You get to choose your peers and who you buy from and who you sell to and who you teach.