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The Magic Cafe Forum Index » » Right or Wrong? » » Sellers' attempts to limit rights (8 Likes) Printer Friendly Version

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danaruns
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We all know that sometimes you will buy a trick or routine, only to discover after purchase that the seller/creator includes a clause saying that you are not licensed to perform the routine on TV, YouTube, Facebook, Instagram, Twitter, social media, or if you are alone or with somebody, and seemingly the only time you are allowed to perform the trick is at birthday parties on Guam, or some such thing. And there has been plenty of griping about that here, and the "ethics" involved.

Well, I want to ask how it would be perceived, ethically and in the community, if a purchaser were to file a lawsuit against the seller, challenging their right to limit performance. I'll tell you with certainty that some of these attempts to limit performance are not legally enforceable. So, would someone filing such a lawsuit be seen as a hero or a pariah?

Personally, I'm against sellers trying to limit performance rights. My own feeling is that if you sell something, you sell it. Period. Legally, methods cannot be copyrighted, so attempts to limit their use are unenforceable, though something highly choreographed might receive protection as an artistic work rather than a method. Teller famously won a lawsuit on that basis for his "Shadows" routine. Also, the very attempt to limit rights that cannot be legally limited could be construed as a restraint on trade and interference with economic advantage.

On the other hand, there is of course a strong bias in favor of artists protecting their work, even when they want to have it both ways by selling it and restricting it.

So, what would be your opinion of someone who brought suit to clarify some of these issues in court as to what can and cannot be limited when you sell your tricks and routines?
"Dana Douglas is the greatest magician alive. Plus, I'm drunk." -- Foster Brooks
randirain
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If the purchaser isn't informed that there are restrictions before they purchase an effect, it is no way legal.
That's like buying a car, and only after you spend the money do they tell you that you can't drive it on the streets.

I do believe magicians have the right to have performance restrictions, as long as they are made public, but I have no idea why anyone would purchase a magic effect that they can't perform publicly.

But to answer your question...
Quote:
So, what would be your opinion of someone who brought suit to clarify some of these issues in court as to what can and cannot be limited when you sell your tricks and routines?

I say go for it.
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Danny Kazam
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Great question danaruns! Look forward to responses.
Keep your dreams alive. Understand to achieve anything requires faith and belief in yourself, vision, hard work, determination, and dedication. Remember all things are possible for those who believe.
GodSpeed23
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I am not a fan of creators limiting the performance rights of a purchase. I believe once I buy the trick, it is my decision where and when I perform it. With that said, I'm sure someone can make the arguement, "Hey, if you know before hand the stipulations and you don't like it...don't buy it". Personally, it's that line of reasoning I don't buy. Skittles can print all day long on their package that by purchasing their candy you agree not to share any with your buddy, but that doesn't make it legally binding (whatever...I like skittles!).
The creator can't have it both ways. The trick can't be out there on whatever terms he/she comes up with. If it takes litigation to get that across, it's a shame, but so be it. Just my opinion, of course!
Tom Cutts
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I have found it better to try to understand and respect the intentions of those who create rather than simply take everything you can, just because you can.

No lawsuit is necessary unless action is taken against someone to attempt to enforce rights which legally do not exist.

It would be far better to have a feature piece in one of the major magic magazines written by an authority on ip law. It is no surprise that magicians are unfamiliar with actual ip law and assignment of rights, and jump ahead with something which is invalid in the eyes of the law.
mastermindreader
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A creator certainly can license and limit performance rights to scripted material, PROVIDED the extent of the license and limitations is made clear to the buyer PRIOR to the sale.
0pus
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The Fitch Kohler Holdout has been offered under a "License and Confidentiality Trade Secret Agreement."

I believe that this agreement was required before the holdout was even described/marketed. You needed to sign the agreement before the holdout was even "sold" (technically, it was licensed, not sold).

All on the up and up; all entirely legal; all completely different from the way magic devices are usually sold.
danaruns
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Quote:
On Jun 3, 2016, mastermindreader wrote:
A creator certainly can license and limit performance rights to scripted material, PROVIDED the extent of the license and limitations is made clear to the buyer PRIOR to the sale.


This is a good distinction to be aware of. Scripted material, if sufficiently substantial and original to be considered its own creative work, can receive legal protection, and the owner can then license its use, including restricting where and how it can be used. However, methods -- i.e., how a trick is performed and an effect achieved, have no legal protection whatsoever, and you can do whatever you want with that knowledge/prop, including performing on TV and sharing the secrets on YouTube. Nevertheless, some sellers attempt to limit use anyway by virtue of some language about license and threat of legal action, etc.

So, I suppose there are really two issues involved: scripts and methods. The former might receive legal protection if it meets copyright qualifications, the latter has no legal protection no matter what. And then there's the issue of finding out the details of the attempted restrictions when you buy the trick and open the package.
"Dana Douglas is the greatest magician alive. Plus, I'm drunk." -- Foster Brooks
0pus
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Quote:
On Jun 3, 2016, danaruns wrote:

. . . scripts and methods. The former might receive legal protection if it meets copyright qualifications, the latter has no legal protection no matter what.


Not exactly true.

Copyright: Perform a copyrighted script word-for-word and you violate the law. Change it enough and you don't. How much is enough? Copperfield and Teller have brought cases that push the limits on this matter.

Patent: Michael Jackson's "Lean" is patented. It gives monopoly rights, but requires full disclosure of the method. No one else can use it. But who enforces that? The patent owner - he or she will need to be vigilant to nab infringers. That is very expensive, and probably economically a loser to the patent holder.

Trade secrets - just what it sounds like - you don't blab about it and swear others to secrecy (should you expose the method to another). Magicians today (and I include 'mentalists') just blab too much for this to work. The Kohler Fitch holdout is a noble experiment, but I think it is inevitably doomed. Because magicians are ultimately blabbermouths.
danaruns
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Quote:
On Jun 3, 2016, 0pus wrote:
Quote:
On Jun 3, 2016, danaruns wrote:

. . . scripts and methods. The former might receive legal protection if it meets copyright qualifications, the latter has no legal protection no matter what.


Not exactly true.

Copyright: Perform a copyrighted script word-for-word and you violate the law. Change it enough and you don't. How much is enough? Copperfield and Teller have brought cases that push the limits on this matter.

Patent: Michael Jackson's "Lean" is patented. It gives monopoly rights, but requires full disclosure of the method. No one else can use it. But who enforces that? The patent owner - he or she will need to be vigilant to nab infringers. That is very expensive, and probably economically a loser to the patent holder.

Trade secrets - just what it sounds like - you don't blab about it and swear others to secrecy (should you expose the method to another). Magicians today (and I include 'mentalists') just blab too much for this to work. The Kohler Fitch holdout is a noble experiment, but I think it is inevitably doomed. Because magicians are ultimately blabbermouths.


Wellllll....

As I said, tricks themselves are not subject to copyright protections because "methods" can never be copyrighted, only "artistic" or "creative" works. The threshold for copyright protection is fairly stringent in terms of what constitutes a creative work, and most magic tricks simply don't meet that bar. One I think does is Shin Lim's recently marketed "Dream Act," which is probably subject to choreography or mime copyright, but the vast majority don't, even when they are sold with scripts. In a quirk of U.S., copyright law, the moves or method of a trick are not subject to copyright protection, but if a magician writes those moves down, the writing is subject to protection.

Patents don't really apply to magic tricks. What is patented about Jackson's "Lean" is the gimmick in the shoes and the matching hitch stage technology. It's the mechanics of it. Some inventions and designs can be patented if they are deemed original enough, useful enough and other technical requirements called "claims." By the way, anything patented MUST be disclosed in detail to the public, so magic tricks wouldn't seem to qualify for patents, since secrecy is the nature of the beast.

Trade secrets are creatures of statute. "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Obviously, anyone selling a trick cannot possibly claim trade secret status.

I'm not an intellectual property attorney, but I'm more knowledgeable than most. But the issue here is more to what is it okay to do, if you think the performance of a trick you bought is being unlawfully restrained? Is it "okay" for one magician to sue another one over the right to perform a purchased trick?
"Dana Douglas is the greatest magician alive. Plus, I'm drunk." -- Foster Brooks
Danny Kazam
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I say perform the routine using all your legal rights as a consumer and let the seller try to sue if he/she thinks they have a case. Or, explain to the seller that you feel the restrictions violate your rights. Maybe all can be settled peacefully.
Keep your dreams alive. Understand to achieve anything requires faith and belief in yourself, vision, hard work, determination, and dedication. Remember all things are possible for those who believe.
mastermindreader
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The main point is that, to be enforceable, restrictions or licenses regarding performing rights should be part of the deal BEFORE the sale, and known and agreed to IN WRITING and signed by the licensee/purchaser.
Dannydoyle
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Of course one crazy idea is just to create your own.

Nahhh never mind.

As Bob said disclosure prior to purchase is the key. Sign it and live by it.

Tom's point of trying to understand the creator's point of view is pretty important I think. That is the road the discussion should be on, not trying to take as much as possible.
Danny Doyle
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<BR>In a time of universal deceit, telling the truth is a revolutionary act....George Orwell
Danny Kazam
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Quote:
On Jun 4, 2016, mastermindreader wrote:
The main point is that, to be enforceable, restrictions or licenses regarding performing rights should be part of the deal BEFORE the sale, and known and agreed to IN WRITING and signed by the licensee/purchaser.


But, even if you sign, is it enforceable? Not all signed agreements or contracts are legally binding. Just because a seller makes you sign an agreement before sale doesn't make it legally binding. In fact, he maybe violating your rights as a consumer.
Keep your dreams alive. Understand to achieve anything requires faith and belief in yourself, vision, hard work, determination, and dedication. Remember all things are possible for those who believe.
mastermindreader
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Quote:
On Jun 4, 2016, Danny Kazam wrote:
Quote:
On Jun 4, 2016, mastermindreader wrote:
The main point is that, to be enforceable, restrictions or licenses regarding performing rights should be part of the deal BEFORE the sale, and known and agreed to IN WRITING and signed by the licensee/purchaser.


But, even if you sign, is it enforceable? Not all signed agreements or contracts are legally binding. Just because a seller makes you sign an agreement before sale doesn't make it legally binding. In fact, he maybe violating your rights as a consumer.


If the condition is part of the consideration for the sale/licensing, yes, it is enforceable. No one's rights are being violated. In that sense, the contract is very much like a non-disclosure agreement.

And note that scripts for movies and plays are routinely sold to the public, for their own entertainment. The sale does NOT give them public performance rights.

If you don't want to adhere to the agreement you signed, simply don't buy the routine.
Danny Kazam
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So, for example, let's say I want to buy a car but the dealer says I have to sign an agreement not to let anyone else drive the car. I sign the agreement and the dealer spots someone else driving my vehicle, he can sue me?
Keep your dreams alive. Understand to achieve anything requires faith and belief in yourself, vision, hard work, determination, and dedication. Remember all things are possible for those who believe.
mastermindreader
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Quote:
On Jun 4, 2016, Danny Kazam wrote:
So, for example, let's say I want to buy a car but the dealer says I have to sign an agreement not to let anyone else drive the car. I sign the agreement and the dealer spots someone else driving my vehicle, he can sue me?


A specious argument for arguments sake. The dealer would have to prove that he suffered damages. Since he already sold the car, that would be impossible. If, on the other hand, he LEASED or rented a rare and expensive vehicle to you on the express condition that no one else drive it, he would have a vested interest in how the car was used and could well repossess the car if the agreement was breached.

Just as creator/writer/performer could very conceivably prove damages if the terms of a licensing agreement were violated to his detriment.
0pus
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Just wanted to point out that when you rent a car from places like Hertz, Avis, Alamo, Enterprise, etc., you have to identify the driver who will be driving the car. Rent it in your own name without designating your son as a permitted driver, let your son drive it, he gets into an accident, you have a big problem.

Just turning Danny Kazam's "absurdist" argument into one that has real-world application.
Danny Kazam
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My question wasn't meant to be arguementive. Nor are we talking about renting products, but buying them.

Anyhoot, out of here before flames ignite. Peace.
Keep your dreams alive. Understand to achieve anything requires faith and belief in yourself, vision, hard work, determination, and dedication. Remember all things are possible for those who believe.
0pus
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There is a world of difference between buying an object (like a cup of coffee) and buying intellectual property.
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