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The Magic Cafe Forum Index » » Latest and Greatest? » » Timmy Toilet Paper Notebook by Tom Burgoon (1 Likes) Printer Friendly Version

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TStone
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On 2010-12-30 11:37, Cyberqat wrote:
Is the difference here that live performance is not tangible?

In the context of the Berne Treaty, "tangible" means repeatable and realized. I.e. to say "I've got this idea for a movie script" is not tangible, whereas actually writing the script is.
There are a few (very few) exceptions to this - for example, an improvisational guitar solo at a rock consert is often not repeatable (and therefore exempt from copyright), but the music industry in some countries has driven through a change in legislation to make these solos protectable as well.
So, a magic performance is considered to be as tangible as any other performance, with the same degree of copyright. With the possible exception of routines like Vernon's "The trick that can not be explained", mental routines with an undefined number of outs and mem-deck jazzing.
TStone
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On 2010-12-31 08:38, Quentin wrote:
Turning to the other question: It is the established practice that tricks published in magic magazines are for the reader to use, develop or adapt for their own personal use. I know a number of magicians have published tricks and routines in obscure publications for the purposes of establishing ownership. But they can't complain if someone finds them and uses them.

The established practice is that people misunderstand copyright.
The main point is that the creator decides over his work. Whether the piece has been published in a magazine or not has no bearing on that.
In the majority of cases, the creator choose to share the work freely with the readers, when publishing a piece in a magazine. That's perfectly alright, as it then is according to the wishes of the creator... but it would be a mistake to, from that, assume that all items in magazines are public domain.

For example, I did an article in Genii a while back, on the topic of keeping notebooks. To make it less abstract, I included a photo of a page in my, then current, notebook. Obviously not any material that was up for grabs, which I thought was clear, since it was a theoretical article on notebooks rather than a part of the magazine's trick section. Still, there were some people who didn't seem to understand the difference.
Steven Conner
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On 2010-12-30 00:17, Engine wrote:

Of course who knows, maybe I'm full of it...why don't you try taking it to the castle and see how far you get Smile



It's true the Castle frowns on copying routines, but what is interesting is that almost everyone who performs there does something someone else did. Example: coins across, card on forehead, cups and balls, etc. They just don't want you stealing someone's act.
"The New York Papers," Mark Twain once said,"have long known that no large question is ever really settled until I have been consulted; it is the way they feel about it, and they show it by always sending to me when they get uneasy. "
emyers99
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We can agree to disagree on the legal aspects but I guess Richard will have to weigh in on the ultimate question which is whether Tom intended to reserve performance rights. Apparently that question has been asked and Richard's recollection was that there was no intent to reserve rights.
TStone
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On 2010-12-29 13:06, Cyberqat wrote:
(3) Since copyright very specifically pertains to works fixed in a tangible medium they are only violated when you make a copy from said medium. Which is to say if I had only seen "Timmy Toilet Paper" as a live performance, and I took no notes or other tangible copy therefrom, I am not in violation if I perform what I remember.


That's not quite true. To perform something you have seen someone else perform constitutes a duplication. Memorization can not be used as a tool to circumvent copyright.

This can be tricky, though.
For example, what a comedian says when he is adlibbing isn't copyrighted, since adlibbing is free-form improvisation and is not a fixed expression.
But many comedians script their material carefully, to simulate adlibbing and make it seem to be free-form improvisation... and that, despite appearance, is a fixed expression and is copyrighted. Tricky, right?
Fortunately, within the Berne Treaty it is solved in the following manner: You are supposed to research potential predecessors and make sure you don't infringe on the copyright of others, before releasing anything. Being unaware or ignorant is not a valid defense. So in the example of the comedian's adlibbing; you can't just assume the material is up for grabs, just because it appear to be adlibbing, you are supposed to research the matter to make sure.
TStone
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On 2010-12-31 11:41, emyers99 wrote:
We can agree to disagree on the legal aspects but I guess Richard will have to weigh in on the ultimate question which is whether Tom intended to reserve performance rights. Apparently that question has been asked and Richard's recollection was that there was no intent to reserve rights.


Copyright can not be sold, transfered or given away. The only exception is if you are employed by someone to create, then the copyright belongs to the employer.
Since Richard did not hire Tom to create this particular piece, his input has no bearing on the matter. The piece belongs to Tom, and Tom alone - and before making use of the piece, you are supposed to make sure that you actually have the right to use it.
TStone
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On 2010-12-29 16:45, emyers99 wrote:
Engine or anyone else for that matter, name me one trick from the last 70 years of Genii that has been explained in detail but where performance rights were reserved.

For US citizens, it makes little sense to refer to the 70 years of Genii, since US didn't join the Berne Treaty of copyright until 1989, and are still gradually adapting to it.
http://en.wikipedia.org/wiki/List_of_par......reements
emyers99
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Just so I'm clear, every time I learn a routine from a magic magazine, I'm supposed to call the creator and ask permission to perform it?
TStone
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On 2010-12-31 13:57, emyers99 wrote:
Just so I'm clear, every time I learn a routine from a magic magazine, I'm supposed to call the creator and ask permission to perform it?

No, not when you learn it.

But once you decide to include the piece in your performances, you have a choice - either assume/guess/gamble that you can use the piece freely, or make sure by contacting the creator. If the former option is chosen, your educated guess will likely be correct - but should you turn out to be wrong, then you are wrong no matter how you twist and turn. As in the case with Tom's piece.
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TStone, I think you have stated the case very well.

I am not an attorney, but I do like to think I know right from wrong. I find it interesting that a few here seem to be trying to rationalize stealing Tom Burgoon's routine.

That is my only comment on this topic.

Happy New Year everyone!

Joe Libby
Ventriloquist and Magician
http://www.funnybirthdayshow.com
International Motivational Speaker & Entertainer; Helps you get ROCK-STAR RESULTS for your event!

For your gifts and free trainings, visit:
https://JoeLibbySeminars.com
emyers99
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So anyone that performs a routine published in a magazine is stealing it? In that case all of us are thieves by your definition. Again, the opening paragraph to the article said Tom was parting with his pet routine. If he wanted to reserve rights, he could have very easily said so. In law, ambiguity is almost always construed against the drafter. That is the case here. I don't perform the routine and don't intend to but arguing that performing a routine voluntarily published in detail in a magic magazine without reserving performing rights is "wrong" is both laughable and nonsensical in my opinion.
TStone
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On 2010-12-31 18:30, emyers99 wrote:
In law, ambiguity is almost always construed against the drafter.

There's no ambiguity here. What matters is:
Are you the creator of the piece?
If not, is the piece in Public Domain?
If not, do you have explicit permission from the creator to use the piece?
If not, then you have no claim to the piece.

It is hard to imagine anything more clearcut than that. Nada ambiguity.
And there's nothing to support the opposing stance - no magazines states that performance rights are included, and our "trade practice/praxis" is not defined in text anywhere.
emyers99
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I'll defend this case any day. 99.99% of all routines published never reserve rights. So if you have to argue "the reader should have assumed this was the 0.01% example where the reader should have read tom's mind and assumed otherwise," that will be a losing argument every time.

Happy new year all.
TStone
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On 2010-12-31 21:17, emyers99 wrote:
I'll defend this case any day. 99.99% of all routines published never reserve rights. So if you have to argue "the reader should have assumed this was the 0.01% example where the reader should have read tom's mind and assumed otherwise," that will be a losing argument every time.

All that is irrelevant.
If it's not in Public Domain, then all rights belong to the creator. It is as simple as that.

You seem to believe that rights are granted, if there is not explicit statement saying the rights are reserved. But it's the exact opposite.
And, according to the Berne Treaty, being ignorant or unaware is not a valid defense - you are supposed to find out and make sure.

What you claim, in essence, is that the work of one creator must be considered to be Public Domain, based on the actions of several other creators, unrelated to this creator. I.e. "I can take a painting from Painter A against his will, because Painter B once gave away a painting for free."
...It doesn't work like that.
emyers99
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So when craig petty did your card routine from vortex on the wizard product review for the world to see, did he ask your permission? If not, does that mean he stole it?
TStone
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On 2010-12-31 22:46, emyers99 wrote:
So when craig petty did your card routine from vortex on the wizard product review for the world to see, did he ask your permission?

Craig Petty had obtained the performance rights and therefore had my permission to perform the piece. So, basically, yes.


From the Copyright page in Vortex:
"Performance rights to the effects and handlings described in these pages are granted only to those who physically possess and own this book"

Before asking whether I've obtained explicit permissions for derivative work, as stipulated in the Berne Treaty, you might want to check out page 253 in Vortex.
emyers99
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I just emailed Wolfgang Puck to make sure I can make his Romano chicken recipe from page 248 of his cookbook. Fingers crossed.

Ps. Vortex is a great book.
emyers99
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So when craig petty did your card routine from vortex on the wizard product review for the world to see, did he ask your permission? If not, does that mean he stole it?
Engine
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Did Craig do it for money? No it was a review. But on another note, sarcasm does little to bolster a discussion or edify it's participants.

In any case...if you're a pro and want a great few minutes of solid killing comedy, buy Tom's stuff...it rocks.
emyers99
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Romano chicken was awesome.
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