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The Magic Cafe Forum Index » » Right or Wrong? » » Ethics - help me understand (0 Likes) Printer Friendly Version

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john oleson
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If a magician sells a book, DVD/Video, does lecture series with notes, is he/she giving permission for use of the routine?

It appears that if I purchase the product/trick or pay to attend a convention/seminar and the magician/lecturer is compensated, then it is a matter of "quid pro quo!"

Although I would never do someone else's routine word for word, embellishing an effect with my personal idiosyncrasies seems reasonable?

Help me with this!

Thanks ... johno
Josh Riel
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Who would you listen to?

What argument would you agree with?

Technically, you bought it; it's yours. If there is a clause that says otherwise... I guess you agreed to the strictures of the purchase agreement.
Using it on T.V.? I don't know.


Here is a discussion about originality, it doesn't necessarily cover the specific question you asked, it does cover the topic. By the way, I agree with Whit.

http://www.themagiccafe.com/forums/viewt......forum=27
Magic is doing improbable things with odd items that, under normal circumstances, would be unnessecary and quite often undesirable.
Al Angello
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He is not giving you permission to do the routine, he has sold you the routine, and it is yours to do with as you wish.
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Gerald Deutsch
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I have a book that I bought years ago written by a famous magician who is no longer alive. On the back of the title page there appears the following:

"ALL RIGHTS RESERVED
Including performance rights for national or syndicated television, video tape, lectures and first person performing rights over conflicting acts-----"

Aside from the legality of this or whether it can be enforced, my own feeling relating solely to ethics is that if the author wants these restrictions it should have been disclosed in all advertising and not left to be discovered by the buyer after having paid for the book by seeing thd small print on the back of the title page.
Scott Fridinger
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I have had magicians show routines, sell methods in lectures and ask people not to perform the routine with his patter/etc. I have seen the copyright Gerald mentions.

There are some tricks that are so strong, changing them makes it weaker (in my opinion Twisting the Aces is one.) You have to use common sense, and try to not intentionally steal and existing/current performers act. There is a difference between act and material.

I think you are on the right path. You show concern to do the right thing, (unless you are looking at someone to give you free reign to do whatever you want). I use this theory, not just for magic. If I am going to do something, and it makes me feel guilty, then maybe I sure readdress what I am doing.

This is just my opinion, and I am nobody, really.
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Merlin C
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Legally, in the USA and Europe, purchasing a copy of a text -- a play, poem, short story, song -- certainly doesn't confer public performance rights. Culturally, there's an informal convention peculiar to magic of being able to perform what you've bought, but I'd be surprised if any judge would give that legal standing.

That's as far as performing actual scripts goes; plots are legally much fuzzier. Likewise, magicians have different attitudes to more or less close reproductions of their material and the ethical situation presumably varies accordingly.
Steve_Mollett
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I've also heard the argument that you should 'credit the creator.' If most average (and not-so-average) magicians did this, half their act would be a 'patter' of dropping the name of every magician associated with every trick or prop, including props that aren't visible to the audience, as well as every sleight employed.
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Caliban
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Quote:
On 2010-08-26 14:19, Merlin C wrote:
Legally, in the USA and Europe, purchasing a copy of a text -- a play, poem, short story, song -- certainly doesn't confer public performance rights. Culturally, there's an informal convention peculiar to magic of being able to perform what you've bought, but I'd be surprised if any judge would give that legal standing.


I think the purchaser's right to perform the material from a magic book would actually stand up in court very easily. Unlike the text of a play or poem, magic books are sold as INSTRUCTIONAL texts. There is no reason for the existence of an instructional book other than to teach the purchaser to do it themselves. It is very well established in law that if you buy an instructional book then you have the legal right to do whatever those instructions teach you to do. Any writer would be laughed out of court if they sold the instructions for how to perform an effect and then sued the purchaser for following those instructions.
61magic
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An important point to remember here, when someone writes a song and publishes it with the proper copyright there is protection allowed.
The song can be sold to musicians in the form of sheet music and a musician is allowed to play that song, however if he receives income from the performance of this song he must pay the appropriate fees else the musician is infringing on the rights of the owner.
The application of this principal is similar to magic and the performance of the routine. Magic has always had and always will have issues over IP rights, copyright, and pattents. Most creators do nothing to protect their creations and run into problems all the time.
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Mentalist Sam
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Quote:
On 2010-10-09 10:26, 61magic wrote:
Most creators do nothing to protect their creations and run into problems all the time.


What would you suggest the creators do? Once a routine is published in a book, it's up for grabs and anyone who owns the book is free to do it. The creator makes his money from the sale of the book. There isn't a system in place in magic that says a creator gets paid for every performance of his creation. It would be impossible to track and furthermore financially too much for the performer.
Caliban
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Quote:
On 2010-10-09 10:26, 61magic wrote:
An important point to remember here, when someone writes a song and publishes it with the proper copyright there is protection allowed.
The song can be sold to musicians in the form of sheet music and a musician is allowed to play that song, however if he receives income from the performance of this song he must pay the appropriate fees else the musician is infringing on the rights of the owner.


The big difference between this and magic is that published songs are always original creations. They may all use the same notes, but if a song contains even the smallest section of the tune from someone else's song - or a couple of lines from the lyrics of someone else's song - then the writer will probably be sued.

With magic, however, hardly any published effects have anything like that level of originality. How many routines can you think of that are 100% original in terms of both the effect and the techniques used for the method? Hundreds of card effects have been published, for instance, where cards reverse within a small packet - but all are reworkings of Twisting the Aces. In musical terms, they would be seen just as cover versions or new arrangements. Even Vernon's original is based around the Elmsley Count, so Alex Elmsley would be due for at least half the royalties.

I would say that 99% of all the magic in print is less than 50% original with the, so called, creator. A comparison with music would only stand up for routines where no part of the effect, plot or method can be recognised as the work of someone else. If a magic trick were a song then any effect that required credits wouldn't be original enough to publish.
Michael Daniels
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Caliban is surely right about magical books etc. being instructional. Why would a magician pay for the material if not in order to (potentially) learn it and perform the routine for an audience?

I don't see that it makes any difference whether (or how much) the performer is paid, and I can't see that the creator/publisher would have any claim to a share of the performer's payment.

There may be a separate issue when it comes to TV or video rights (and YouTube may be a particular problem) but I think that it is up to the publisher to make explicit in all advertising if such rights are excluded.

One of the potential problems of TV, video or YouTube, is that repeated viewing of the routine may expose the method (especially if the performance is poor) or it may allow other magicians to learn the routine without paying for it.

It may therefore be a matter of "seller beware".

Mike
61magic
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To answer Mentalist Sam and Caliban I've been a Magician for over 35 year, have played a couple of instruments ever longer than that and I work as a paralegal.
I have a bit of understanding on the subject, another Café member is a full lawyer and could answer this question better than I.

In any case buying a book, DVD, attending a lecture does not in all cases give someone permission to use the exact performance.

An instructional source is just that instructional, the creator/writer can grant performance rights or not as he chooses. Jim Steinmeyer did this with his Modern Art where he clearly states purchase of his book allows rights to perform the illusion, it does not imply someone the right to copy Jim's performance.

Caliban is right when stating "or a couple of lines from the lyrics of someone else's song - then the writer will probably be sued" but this happens in music all time time.
Kid Rock took most of the music from Warren Zevon's Werewolves of London in creating an "original" song he made money off, reportedly without permission of the Zevon estate.

I'm not suggesting any solution I'm just pointing out the root cause of the problem which is a lack of creators using legal protection for their original creations.

John Oleson references "quid pro quo" in the question, yes I do something for you and you do something for me in return is the creation/purchase of the media, the performance rights are a different matter.
You can allow someone to attend a lecture, purchase a book or DVD to be let in on their secrets without the owner relinquesing rights to the routine.
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Mentalist Sam
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Quote:
On 2010-10-10 17:26, 61magic wrote:
To answer Mentalist Sam and Caliban I've been a Magician for over 35 year, have played a couple of instruments ever longer than that and I work as a paralegal.
I have a bit of understanding on the subject, another Café member is a full lawyer and could answer this question better than I.


That didn't really answer my question. You implied there is more that creators can do to protect their work. My question is - what would you suggest creators do?

Honestly there is very little that can be done. I guess a creator could try and sue, but that gets expensive and there's no guarantee if you win you will collect.

There isn't an entity that oversees this as there is in music. You don't have a BMI or ASCAP or large publisher behind you to help you protect performance rights. The music industry isn't really a good comparison to this situation because they do have a system in place.
61magic
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Mentalist Sam as I said in the post you quoted...
Quote:
On 2010-10-10 17:26, 61magic wrote:
I'm not suggesting any solution I'm just pointing out the root cause of the problem which is a lack of creators using legal protection for their original creations.


To answer your question there is not any short quick answers.
The first step in protecting any work is to take a proactive approach, and use what methods are available.
The do nothing approach seems to be the path of least resistance most people like to take but complain about the result...

If you are in the position of being the creator seek out qualified expertise to assist you, I think you will find others willing to help you at little or no cost.
If you are purchasing something and are not sure what is right or legal (not always the same) seek out the same individuals and they can help guide you.
I'm all for ethics but ethics vary from individual to individual so we make laws to guide us.
Professor J. P. Fawkes
Dan Bernier
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I love these threads because of the so many misconceptions about copyright.

If you buy a trick you have full legal rights to perform it unless the creator has filed for some other type of legal protection. it is also legal to make money from using it. It's not the trick that you are getting paid for, but for your performance.

Same goes in comedy. Comedians steel each others jokes all the time. And, comedians buy other comediens jokes all the time. There is nothing illegal about a comedian using someone elses joke if he bought it or not. The guy who buys it just remains in good standing with his peers.

Same goes for magic. If I see a magician perform a trick at a show, and I am able to figure out how he did it, and then add it to my show, there is nothing illegal about it. You will more than likely gain a very bad reputation from your peers, but you won't go to jail or be sued.

Ethics must first start from the person who is selling the trick. What are their ethics and motivation for selling the trick? What are their ethics when it comes to marketing their effect?

What is the ethics and motivation for someone buying the effect? Most would say, to perform it, which only makes sense. If I buy a cook book, I have all legal rights to sell the food I cook. If the person doesn't like the fact that I am making a lot of cash cooking the food in his cookbook, then he should of never had marketed it. The person marketed it to make money, and the person who bought it did so to make money.

A creator can make all the restrictions and claims they want, but it doesn't make it the law. Even if they lie to you and try to say it is.

The funniest one I've heard is that a certain routine had supposively received PA copyrights, and had trade secret protection. If you know anything about either, you'd know that it is impossible to get those both on a magic trick or magic routine. And, considering all you'd have to do is change the routine or patter by at least 10% only shows those who say otherwise as being ill-informed, or con men.

Even some of the big names have dropped ethics to con you into believing the lie.

It's all about ethics, but when the guy selling the goods ignores ethics for exchange for the mighty dollar, ( or as much of it they can get before the hype dies down) and says things that are not true, why should the wieght of ethics be put on the consumer?

Here's the catch for me. Just because someone who sold me something under unethic means doesn't mean that I have permission to throw out my ethics in retaliation. We all have to face our peers sometime or another. Some get away with it because of their name or who they associate with, but we all should live by our own code of ethics regardless.
"If you're going to walk in the rain, don't complain about getting wet!"
61magic
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Gospel Dan I'm a bit confused by your post and left with the impression you find acceptable to take the material of others, am I reading this wrong?
I believe the point many are making here is the difference between buying a trick whre you are allowed to perform and using a routine that belongs to someone else.
Copyright, Patent, and Trademark are all forms of protection and each has a specific purpose and are applied differently.
You can be sold a trick but not allowed to use the creator's routine bit, by bit, word for word...
Example of this you buy one of Andre Kole's illusions and you receive the rights to perform it, but the original routine, patter and actions by Kole remain with him unless specified otherwise by him.
As a paralegal I run into copyright issues so I would be intereste in your take on the misconceptions you are speaking about.
Professor J. P. Fawkes
Michael Daniels
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I think we need Judge Judy to decide these matters!

Seriously it would be interesting for such a case to come before her. Does anyone know any of the researchers on the show?

Mike
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Dan you say if you see a magician perform a trick at a show, and you copy it, and then add it to your show, there is nothing illegal about it. Later you say if you buy a cook book and the person doesn't like the fact that you're making a lot of cash cooking the food in his cookbook, then he should of never had marketed it.

If the magician who you copied without his consent didn't market the trick, or you didn't pay for his marketed effect, why do you feel justified in stealing his work? Legal issues aside, this behavior is unethical and immoral and is stealing something that doesn't belong to you. Because others do it is no justification, others steal so that means it's okay for you to do?

I feel those who operate like that justify or rationalize their theivery because they are incapable of devloping their own winning routines or lack the funds to obtain the work of others. Either way, taking something that doesn't belong to you is dispicable behaviour even if you can legally get away with it.

Besides, if you copy the work of Copperfield, it doesn't make you Copperfield. Have some self respect. Change your artistic mindset into being the best Dan you can be instead of arguing that thieving the work of others is acceptable just because you can get away with it because it falls into a gray area of the law.
Cyberqat
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So, as someone already alluded to here, there is something in US copyright law called "implied license." You arent free to run off copeis of an entire encyclopedia and re-sell them, but there is implied license that you are going to use parts of articles in other works. This is derivative work, but you have an implied license to create and distribute that derivative.

Similarly I think a good case can be made that most magic books contain an implied license to perform derivatives of the work contained therein. Also keep in mind that what is protected by the copyright is the work, not the idea. So, I can't pick up Wit Hayden's routines from Pop's Medicine Show and use them verbatim, but I can certainly learn the ideas and create my own routine using them.

Ofcourse this is law-- don't be confused, that's a totally different subject than ethics. Noo ne ever said the law was ethical or that ethicality makes something legal. Ask any lawyer.
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