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The Magic Cafe Forum Index » » Right or Wrong? » » Trademark & copyright trick questions? (0 Likes) Printer Friendly Version

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12345
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Hi...

I was wondering how this is...you know the guy from Illusionist....he did not create some of those tricks like "the classic card wrap" he calls it "vodoo zone" or something... how does he and others get away with this???

and others have talked about making your own Invisible Deck for buskers to sell (wouldnt we get in trouble?)

I ask because I do want to make my own Invisible deck and sell it at fairs and events, etc...
MacGyver
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all you have to change is a VERY SLIGHT THING to get around copyright issue's.

Another big thing is that the holder has to take the person to court, and in most cases tricks either aren't copyrighted, or the owner doesn't bother to prosccute.

When you talking about crediting and permissions and the like, you are talking ethics and not legalities. It is perfectly legal to rip off a lot of things as long as you make slight changes.

As far as ID's are concerned, don't sweat it.

it isn't like all the money from all the other ID's on the market are going to the creator....
eddieloughran
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Sorry I can't agree with the above view. Doing things like this will only get you a bad name. Just because other people get away with breaking the law and cheating the creator doesn't make it right.
Eddie
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Um... cheating the creator of the Invisible Deck? Can you even purchase it from the creator?????

Many people make their own Svengali and Invisible Deck's and sell them, I don't see a problem with that.

I am not saying to go out and rip off people's tricks, but Svengali and ID's are in public domain IMHO
lperna
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I don't think I like the idea of selling invisible deck, or other magic secrets for that matter, at a fair. Is it a good idea to make such strong magic easily accessible to laymen?

Lloyd
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All magic is easily accessible to laymen, you just goto a magic store online and some stuff arives at your house.

The catch is that they have to spend money. I wouldn't ever advise someone to give away a pamphlet on how to make an ID for free because many people won't care, but as long as they plunk down money they have put forth the EFFORT to procure a magic effect, and there is no problem with that.

I am sure thousands if not millions have "easy" access to things like thumbtips, Svengali decks, even hot rod's, and yet are still entertained when they see it performed.
lperna
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The difference is that Magic Shops (brick and mortar, or online) don't market to laymen (most of them anyway). A layman has to seek this out and make an effort. As opposed to selling things like this at a fair or flea market, where you are marketing this stuff to laymen in general. Personally, I'd rather not see the ID advertized on cable as Improved TV Magic Cards.
Pete Biro
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The problem with the Invisible Deck (and even a Svengali deck) is that when "dad" gets home and opens the package and decides to do it for the kids... he will not be able to to it.

It is not a self working item.

Ken Brooke, a master pitchman, would never sell tricks like that, that can't be done immediately by the buyer.

He would pitch things like the small coloring book, or the flap card 3-card trick "The Dutch Looper" as he called it.

Smile
STAY TOONED... @ www.pete-biro.com
redstreak
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Quote:
On 2003-09-12 02:06, 12345 wrote:
Hi...

I was wondering how this is...you know the guy from Illusionist....he did not create some of those tricks like "the classic card wrap" he calls it "vodoo zone" or something... how does he and others get away with this???

and others have talked about making your own Invisible Deck for buskers to sell (wouldnt we get in trouble?)

I ask because I do want to make my own Invisible deck and sell it at fairs and events, etc...




That's why Ellusionist has a very bad name. I would never rip off another person's trick just to make money.

In your case I wouldn't sell something like an Invisible deck to a layman. Unless they are REALLY interested in doing magic, all you will be doing is making someone who will say "I know how he does that".
Dennis Michael.
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When does a trick become public domain? Who calls that one? If you want to sell something, sell yourself. Make a break through with an effect, credit those who came before you, and then offer the new and improved twist on the effect to your peers.

We are magicians and our job is to create magic in the lives and minds of our audiences. By giving them (or rather selling them the secret) We do them wrong and from that point are no longer magicians but money grubbing pitchmen. Why not just sell them something else useless like snakewater. Smile
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Dennis Michael
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MacGyver
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I would personally say a trick becomes public domain, when the creator/creator's heir isn't receiving any money from it because they have stopped making it and others have taken the idea to sell...

Now this might upset people, but the whole reason copyright laws were invented, was to make sure that the creator didn't get ripped off and get denied money they they deserved. It was not to make sure that you can't listen / perform / create their idea without permission.

I am not trying to get into the ethics or morals involved in selling laymen magic, but mearly the legal side.

Let's face it, magic stores NEED to make money or they can't stay open. If they refused to sell a trick to someone becuase they just wanted to know the secret then they couldn't stay open.

Like it or not, Laymen can get 99% of magic tricks, books and video's with no prior magic knowlege. It hasn't ruined magic beacuse everyone knows how its done, and it won't in the future.

Most people don't remember magic or know the applications. You could tell them the secret to an invisible deck and still fry them awhile later on with a properly used routine that disguises the ID(not "oh look your named card is face down").

I think the original poster was asking if he could "get into trouble" by selling an invisible deck at a fair, and the answer to that is NO WAY. I don't think ANY of the ID proceeds goto the creator, and if he isn't sueing the major companies from mass producing them, he won't care if you sell them at some fair.

There is also a big difference between selling an ID, Svengali, ect deck and selling something like "Sankey's In a Flash" or "Aronson's Red Sea Passover". Those effects DO still give money to the creator, and should NEVER EVER EVER be sold by anyone other than them to anyone.

-MacGyver
Marshall Thornside
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its a patent. you can request a copy of the patent. it gives a complete directions and layout. in order to consider something of you own approximately 10-20%. a patent is good for an X amount of years like the copyright [i believe its still 50].

unless you are doing something drastic to the trick its probably not even worth trying to pursue in case of legalities.

there's plenty of things my dad has built and re-built to perfection that many magicians use even today and they don't know it, and he never patented anything.

i have only dealt with copyrighting my own music. you should research all avenues before pursing anything.
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Dr_Gonzo
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I think disney had copyright extended again (and will do ad infinitum) so you can treat copyright these days of being effectively endless (in the US).
Eldon
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I have met a lot of great magicians that got started by purchasing a Svengali or Stripper Deck at a fair or carnival.
Dennis Michael
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If one changes the item significantly, but the outcome is still the same it could be OK. For instance, there is the Walsh spring steel appearing cane and Fantasio plastic appearing cane. Did Fantasio rip off Walsh's cane idea? The magic society accepted this copy, even though many thought it was inferior to the spring steel. Now there are many variations of the spring steel cane and the plastic canes.

The Mirage deck is a Svengali Deck with Roughing powder, yet the magic society doesn't look at that as a rip off. Where is that acceptable line? No one knows for sure, however, the law is pretty clear in that any change creates a new product.

A rip off is the India made What's Next effect. The cover is so close to the origional, that it appears to be an exact copy. The effect is a black card with red spots. Technically different only in color, and it's an inferior product.

What is the Answer or Solution? Who really knows for sure? The courts are the decision makers in these situations. Emit Kelly, the clown, sued his son for copying the look and the routines he created and the courts ruled against the father because there is sufficient differences in facial shape. Which leads me to believe, he who has the better lawyer wins!
Dennis Michael
Eric Grossman
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[quote]On 2003-09-13 13:34, MacGyver wrote:
All magic is easily accessible to laymen, you just goto a magic store online and some stuff arives at your house.

Here's something to consider. You still have to be looking for it. I don't remember any magic retailers knocking on my door, or sending pop-up adds to any layman's computer.

Selling effects at a fair, is basically throwing them in front of those who were probably not looking. As a magician, I don't support this.

I think magic should be a "seek and ye shall find" endeavor, not a "hey let me expose you to this" one.

Eric Grossman
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Billgussen
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Quote:
Now this might upset people, but the whole reason copyright laws were invented, was to make sure that the creator didn't get ripped off and get denied money they they deserved. It was not to make sure that you can't listen / perform / create their idea without permission.


Actually, a copyright does make sure you cannot perform or create copyrighted material without permission, or at least, the threat of legal recourse. A play is copyrighted material, and performers must get (and usually pay for) permission to perform it.

Although it has not come up in magic that I am aware of, it could be argued in court that with purchase of an effect (or a book or video that describes an effect) is a license to perform that effect. However no license or permission is explicit or implicit for you to create your own knock-offs of the effect in order to sell them.

I do not know if there is a copyright held on the standard gimmicked decks, and considering the number of manufacturers that produce them, I'm inclined to believe that they have fallen into public domain. A lot of intellectual property, especially from the early 20th century fell into public domain before copyright laws were modified. (There are some that are privately held though -- it turns out that Happy Birthday is still held by an estate.)

Performance is probably okay. Recreating for profit is certainly not. And listening...I know several stores (non-music stores) that have been sucessfully sued by the music publishing industry because they had the radio or recordings playing in the background. Yes, you can be sued for listening.

If you sell knock-off items, don't get caught.

Bill
carla
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I am an intellectual property attorney so I thought I would weigh in with some general comments here. This is not legal advice directed to any particular situation, but rather my general observations on the state of (United States) intellectual property laws as they might apply to magic effects and performances. (Other countries' laws are similar but not identical.)

First, a little on the difference between the subject matter of copyright, that of patents, and that of trademarks:

Copyright protects original works of authorship fixed in a tangible medium. Subject matter of copyright can include artwork, text, and audiovisual works, among other things. The idea or concept behind an effect is not protected by copyright. Only a particular expression of an idea is proper subject matter of copyright. The protection afforded by a copyright is the right to prevent others from making unauthorized copies of the work.

Copyright exists the moment the work is fixed in a tangible medium; the author does not need to register with the Copyright Office to obtain rights, but it is advisable (and sometimes necessary) to do so if you anticipate ever enforcing your rights in court. An individual author's copyright lasts the life of the author plus 70 years. Copyrights in older works may have expired sooner than that, depending upon when the work was created. Thus, the question of when a work enters the public domain can be very complex.

A patent protects compositions of matter or processes that are new, useful, and would not be obvious to someone skilled in the art to which the invention pertains. The patent can protect an "idea" to the extent that the idea is described in particular and generalized embodiments in the patent document.

Patent protection does not exist as soon as the invention is made; only after an application is filed in the patent office, examined, and allowed, does the patent issue and rights commence. This process is technical and can take years, depending upon the field and complexity of the invention. The patent term expires 20 years from the date the application was filed. A patent provides the owner the right to exclude others from making, using, or selling the invention described.

A trademark is just that: a mark used in trade. It protects the brand names under which products or services are offered. To obtain a trademark you need only use your mark in trade. However, to enforce a trademark under the Federal trademark laws you must register with the Patent and Trademark Office, and you can obtain registration only for the use of the mark in connection with particular goods or services and only if your trademark is not generic or merely descriptive or a few other prohibited categories. Trademark protection lasts as long as you keep using the mark, and affords the owner the right to prevent others from using a mark that is likely to cause confusion in the marketplace as to the origin of goods or services.

If a magician devises a new effect, performs it before audiences, writes up lecture notes, and offers the lecture notes and the gimmick on the market, the magician's intellectual property rights are implicated in several ways. There may be copyright in the patter or script or story of the effect, provided it is fixed in a tangible medium. There is copyright in the lecture notes themselves - the description of how to perform the effect and the figures provided with it. And the gimmick itself, or the method of achieving the effect, might be patentable if the creator chooses to file an application. If the gimmick is a gaffed card, for example, the design of the card may be also be a copyright protected work.

These copyrights would mean that the purchaser would not be entitled to make unauthorized copies of the notes and possibly the gaff. It would also mean that, without a license, any patter published in the notes could not be used in performance, because that performance would amount to an unauthorized reproduction of the text in the lecture notes. However, it is certainly the custom or practice in the industry that the purchase of lecture notes or a book comes with an implied right to perform the effects disclosed. If I were selling effects, though, I would make very clear which of my rights I was reserving (the right to duplicate the notes and the gimmick) and which I was licensing (the right to perform).

Phew. I could say more, but I need to get back to work. I hope this was informative and cleared up some common misconceptions about copyright and patent protection. Probably, though, it raised more questions than it answered, so please fire away. And remember, there are grey areas in the law, so your questions are likely to get very hard very fast, and my opinions are just that; others may disagree. If you have a real (not hypothetical) legal question, consult a lawyer.
12345
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In the world of business....
You can take an exisiting product and make it better..

That new product becomes yours.

Look at the soda pop industry.... so many choices, but has the same "effect" just different names and ingredients right?

How about jeans?? cars, etc...

I think in magic, it's hard to get a patent, only copyright of the BOOK or VIDEO, the secret behind the trick is tricky to patent, and I don't think the secret can be copyright?

Lets say someone watched a performance of the "elevator levitation" one could successful agrue in court (if need be) they created their on effect, that being a magician - we are trained to understand and acheive how things are done - we could say "your honour, My son and I were practicing magic in our garage and figured a way to acheive the same effect (or an effect similar) to so and so's Elevator Levitation... it is not identical in methods, but has the same effects... we are not copying and reselling his video or book, it is our own methods in which to create a self levitation...

unless so and so has a patent pending on Levitations in general, one could find a loop hole (they always exist) ... im not saying go rip of the elevator, but making a point that I don't think you could patent a secret or more specifically a "effect" same results, different means
MacGyver
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again there is a big difference between ethical and legal.

You can definatly weasle around the law and rip someone off, but you would be a big goober if you did so.

AFAIK, the reasons I stated above were WHY the copyrights were made, not what they are used for today.

I am not a law major or history major, but for some reason I am pretty sure that when copyrights were first envisioned, it was to protect the creator, not prevent you from listening to it/ performing it as LONG AS IT DIDN'T HURT THE AUTHOR.

This whole stuff about you can't use someone's music to make new music, or that you can be sue'd for listening to something is all the work of big companies to get the almighty dollar.

anyway... as far as the Svengali deck is concerned don't worry about it. but DON'T GO AFTER MARKETED EFFECTS(ones that are being sold by creator). Peter is a member of the Café and you shouldn't rip off his elevator just if you came up with a similer idea.

Besides you wouldn't have come up with the method had you not watched the video of it.

And yes you CAN patent secret's, a lot of Copperfields things are patented with some large illusions. The secret is how broadly you define your patent.

I don't know if peter patented the elevator, but i'm sure you could define it broadly enough that a slight change in the method would be covered, since you are still using the "base method"
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