Intellectual rights to magic methods
Encyclopedia
Intellectual rights to magic methods refers to the legal and ethical debate about the extent to which proprietary
or exclusive right
s may subsist in the methods or processes by which magic
tricks or illusions are performed. It is a subject of some controversy.
On one side, many magicians argue that methods represent "intellectual property
" and that publication or sharing of methods should be subject to strict codes developed by magicians' organizations. On the other side, a range of people argue that publication of information about methods should not be subject to restrictions because knowledge should be freely available. The sharing of magic methods with non-magicians or the open publication of methods is referred to in the magic community as "exposure
" and many magicians react angrily to it.
What is often forgotten is that while many magic tricks rely on traditional methods, there is also a continuing development and progress within the genre. Those who are performers and amateurs tend to take a very defensive stance against all "exposure
", while those who are creators and originators tend to care more about recent works - works with living and identifiable creators.
, patent
, trade secret
and trademark
law, are the primary sources of legal protection at issue on the topic.
, member states are free to prescribe in their national legislation that copyright is automatically granted to a work only when it is "fixed", that is, written or recorded on some physical medium. In the U.S., copyright law
only protects works that are fixed in a tangible medium of expression. Accordingly, some argue, the processes or movements required for a trick are not copyrightable within the U.S, but recordings, written descriptions, or photographs of such a performance may be copyrightable themselves.
The idea-expression dichotomy
specifies that mere ideas are not entitled to copyright; only the expression of those ideas are granted protection. For example, if a magician writes a description of how a trick works, the description will generally be subject to copyright.
Another potential area of copyright protection for magic creators is through a choreography or pantomime copyright, although in the U.S. this has yet to be tested in actual case law. In fact, very few published copyright opinions have involved magic tricks.
or process which facilitates the performance of a magic trick is potentially patentable
in the U.S. However, applying for patent protection requires the public release of information about how the device or process works. Furthermore, when a patent is obtained, it can only be used to prevent a third party from making or using the subject matter of the patent. This prevents other magicians from performing the trick but cannot be used to prevent anyone from revealing how the trick works.
Notably, in 1938, R.J. Reynolds was sued by magician Horace Goldin
over an ad campaign which revealed one method for a Sawing a woman in half
trick. The case was eventually dismissed by a federal court and Goldin then gave up on patenting his methods.
Examples of patented inventions for conjuring include:
and share many characteristics of trade secrets in other business sectors. As such there is a significant body of law that falls under the headings of "confidentiality
" and "contract law" that might be used to control or protect them. These measures can effectively allow a perpetual monopoly in secret information - i.e. it does not expire as would a patent or copyright.
A company or individual can protect their confidential information through non-disclosure contracts with employees or business associates. A magician might therefore ask a partner or fellow magician to sign a non-disclosure agreement
before sharing magic methods. That contract could then be enforced through the courts. The terms of such contracts might be subject to constraints of employment law (for example including only restraint that is reasonable in geographic and time scope). As with law generally, there will be variations across jurisdictions.
Information which a magician has intentionally kept confidential and which is not in the public domain
may also be deemed to have a legally enforceable quality of confidentiality. The exact legal definitions of circumstances in which such protection applies vary across jurisdictions, as do the remedies available.
. There have been a number of court cases in which magicians have sought to assert rights to magic methods and prevent publications or broadcasts. These include:
or peer pressure. One of the largest societies of magicians in the world, the International Brotherhood of Magicians
, has a Code of Ethics
which states:
The Brotherhood advises that any individual who is a professional or amateur magician should be aware that "exposing" the methods of an illusion may result in damage to their relations among other magicians.
However, such codes don't extend to selling magic, though magicians consider the seller of a magic trick should prove that the purchaser intends to learn and perform the trick for others, thereby becoming a magician, rather than simply wanting to know how a magic trick is done out of curiosity.
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
or exclusive right
Exclusive right
In Anglo-Saxon law, an exclusive right is a de facto, non-tangible prerogative existing in law to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit. A "prerogative" is in effect an exclusive right...
s may subsist in the methods or processes by which magic
Magic (illusion)
Magic is a performing art that entertains audiences by staging tricks or creating illusions of seemingly impossible or supernatural feats using natural means...
tricks or illusions are performed. It is a subject of some controversy.
On one side, many magicians argue that methods represent "intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
" and that publication or sharing of methods should be subject to strict codes developed by magicians' organizations. On the other side, a range of people argue that publication of information about methods should not be subject to restrictions because knowledge should be freely available. The sharing of magic methods with non-magicians or the open publication of methods is referred to in the magic community as "exposure
Exposure (magic)
Exposure in magic refers to the practice of revealing the secrets of how magic tricks are performed.The practice is generally frowned upon as a type of spoiler that ruins the experience of magical performances for audiences.-Background:...
" and many magicians react angrily to it.
What is often forgotten is that while many magic tricks rely on traditional methods, there is also a continuing development and progress within the genre. Those who are performers and amateurs tend to take a very defensive stance against all "exposure
Exposure (magic)
Exposure in magic refers to the practice of revealing the secrets of how magic tricks are performed.The practice is generally frowned upon as a type of spoiler that ruins the experience of magical performances for audiences.-Background:...
", while those who are creators and originators tend to care more about recent works - works with living and identifiable creators.
Possible legal protection
There are a number of areas of law that might provide a basis for magicians to claim ownership of certain pieces of knowledge and to prevent exposure. Each type of protection has its own limitations and loopholes. CopyrightCopyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
, patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
, trade secret
Trade secret
A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers...
and trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
law, are the primary sources of legal protection at issue on the topic.
Copyright
Under the Berne ConventionBerne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
, member states are free to prescribe in their national legislation that copyright is automatically granted to a work only when it is "fixed", that is, written or recorded on some physical medium. In the U.S., copyright law
United States copyright law
The copyright law of the United States governs the legally enforceable rights of creative and artistic works under the laws of the United States.Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution...
only protects works that are fixed in a tangible medium of expression. Accordingly, some argue, the processes or movements required for a trick are not copyrightable within the U.S, but recordings, written descriptions, or photographs of such a performance may be copyrightable themselves.
The idea-expression dichotomy
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
specifies that mere ideas are not entitled to copyright; only the expression of those ideas are granted protection. For example, if a magician writes a description of how a trick works, the description will generally be subject to copyright.
Another potential area of copyright protection for magic creators is through a choreography or pantomime copyright, although in the U.S. this has yet to be tested in actual case law. In fact, very few published copyright opinions have involved magic tricks.
Patents
An inventionInvention
An invention is a novel composition, device, or process. An invention may be derived from a pre-existing model or idea, or it could be independently conceived, in which case it may be a radical breakthrough. In addition, there is cultural invention, which is an innovative set of useful social...
or process which facilitates the performance of a magic trick is potentially patentable
Patentability
Within the context of a national or multilateral body of law, an invention is patentable if it meets the relevant legal conditions to be granted a patent...
in the U.S. However, applying for patent protection requires the public release of information about how the device or process works. Furthermore, when a patent is obtained, it can only be used to prevent a third party from making or using the subject matter of the patent. This prevents other magicians from performing the trick but cannot be used to prevent anyone from revealing how the trick works.
Notably, in 1938, R.J. Reynolds was sued by magician Horace Goldin
Horace Goldin
Horace Goldin was a stage magician who was noted for his lightning fast presentation style and who achieved international fame with his versions of the Sawing a woman in half illusion. -Early life:...
over an ad campaign which revealed one method for a Sawing a woman in half
Sawing a woman in half
Sawing a woman in half is a generic name for a number of different stage magic tricks in which a person is apparently sawn or divided into two or more pieces.-History:...
trick. The case was eventually dismissed by a federal court and Goldin then gave up on patenting his methods.
Examples of patented inventions for conjuring include:
- The Svengali card deck, patented by Burling HullBurling HullBurling Hull was an inventive magician, self-styled "the Edison of magic," specializing in mentalism and sleight of hand effects. During the greater part of his life he lived in DeLand, Florida...
in 1909 - The Quick-changeQuick-changeQuick-change is a performance style in which a performer or magician changes quickly within seconds from one costume into another costume in front of the audience.-Modern Quick-Change Artists:...
magic trick under - The theatrical effect of Pepper's ghostPepper's ghostPepper's ghost is an illusionary technique used in theatre and in some magic tricks. Using a plate glass and special lighting techniques, it can make objects seem to appear or disappear, transparent, or make one object seem to morph into another...
from the 1800s - John Gaughan's levitationDavid Copperfield's flyingDavid Copperfield performs a flying levitation trick created by John Gaughan, which is notable for its graceful motion and unencumbered appearance. During the trick, Copperfield flies acrobatically about the stage, and then appears to have spinning hoops passed around him to prove that he is not...
apparatus, filed in 1993 - Horace GoldinHorace GoldinHorace Goldin was a stage magician who was noted for his lightning fast presentation style and who achieved international fame with his versions of the Sawing a woman in half illusion. -Early life:...
applied for a patent for Sawing a woman in halfSawing a woman in halfSawing a woman in half is a generic name for a number of different stage magic tricks in which a person is apparently sawn or divided into two or more pieces.-History:...
in September 1921 and was awarded U.S. patent number 1,458,575 on 12 June 1923. Although the patent provided protection against other magicians using his ideas it also aided people seeking to expose the method to the trick.
Trade secret and contract law
Magic methods are effectively forms of trade secretTrade secret
A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers...
and share many characteristics of trade secrets in other business sectors. As such there is a significant body of law that falls under the headings of "confidentiality
Confidentiality
Confidentiality is an ethical principle associated with several professions . In ethics, and in law and alternative forms of legal resolution such as mediation, some types of communication between a person and one of these professionals are "privileged" and may not be discussed or divulged to...
" and "contract law" that might be used to control or protect them. These measures can effectively allow a perpetual monopoly in secret information - i.e. it does not expire as would a patent or copyright.
A company or individual can protect their confidential information through non-disclosure contracts with employees or business associates. A magician might therefore ask a partner or fellow magician to sign a non-disclosure agreement
Non-disclosure agreement
A non-disclosure agreement , also known as a confidentiality agreement , confidential disclosure agreement , proprietary information agreement , or secrecy agreement, is a legal contract between at least two parties that outlines confidential material, knowledge, or information that the parties...
before sharing magic methods. That contract could then be enforced through the courts. The terms of such contracts might be subject to constraints of employment law (for example including only restraint that is reasonable in geographic and time scope). As with law generally, there will be variations across jurisdictions.
Information which a magician has intentionally kept confidential and which is not in the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
may also be deemed to have a legally enforceable quality of confidentiality. The exact legal definitions of circumstances in which such protection applies vary across jurisdictions, as do the remedies available.
Court cases
Court cases provide the ultimate test for any of the possible rights outlined above and, indeed, often establish law in the form of case lawCase law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
. There have been a number of court cases in which magicians have sought to assert rights to magic methods and prevent publications or broadcasts. These include:
- 1920's-1930's: Horace GoldinHorace GoldinHorace Goldin was a stage magician who was noted for his lightning fast presentation style and who achieved international fame with his versions of the Sawing a woman in half illusion. -Early life:...
was involved in many legal actions related to the Sawing a woman in halfSawing a woman in halfSawing a woman in half is a generic name for a number of different stage magic tricks in which a person is apparently sawn or divided into two or more pieces.-History:...
illusion, including one in 1922 against the makers of a film that exposed the method and one in 1938 against the R. J. Reynolds Tobacco Company for exposing the secret in an advertisement for cigarettes. - 1943: Charles "Think-a-Drink" Hoffman sued Maurice Glazer for violation of his the copyright and trademark rights in his "Think-a-Drink" act. The Supreme Court of Florida upheld the trademark decision for Hoffman, but held that Hoffman's act was not "dramatic" enough to qualify for Copyright Protection under the 1909.
- 1947: The Harold Lloyd Corporation sued Universal Pictures Company for copyright violation of its film "Movie Crazy." In the infringed scenes, the protagonist accidentally puts on a magician's coat and he is plagued by a series of bewildering magic effects.
- 1998: Joseph Harrison and a number of other magicians filed an unsuccessful class-action lawsuit against SF broadcasting and Fox Broadcasting for exposing the secrets to a number of illusions on their Masked Magician special.
- 1998: André KoleAndré KoleAndré Kole is the stage name of Robert Gurtler Jr., an American magician and inventor of magical effects. He is also a committed Christian and is a public speaker for the evangelical group Campus Crusade for Christ International....
tried to sue the makers of the Masked Magician television specials to prevent exposure of the Table of DeathTable of deathThe table of death is a predicament escape that is alternately considered as falling into the categories of a magic trick or an act of escapology.-Description:...
trick. - 2007: Japanese magicians sued local TV networks for exposing coin tricks.
Codes of practice
The most effective protection against the public exposure of magic methods may be a matter of ethicsEthics
Ethics, also known as moral philosophy, is a branch of philosophy that addresses questions about morality—that is, concepts such as good and evil, right and wrong, virtue and vice, justice and crime, etc.Major branches of ethics include:...
or peer pressure. One of the largest societies of magicians in the world, the International Brotherhood of Magicians
International Brotherhood of Magicians
International Brotherhood of Magicians is the world's largest organization for professional and amateur magicians, with approximately 15,000 members worldwide. The headquarters is in St...
, has a Code of Ethics
Ethical code
An ethical code is adopted by an organization in an attempt to assist those in the organization called upon to make a decision understand the difference between 'right' and 'wrong' and to apply this understanding to their decision...
which states:
- All members of the International Brotherhood of Magicians agree to oppose the willful exposure to the public of any principles of the Art of Magic, or the methods employed in any magic effect or illusion.
The Brotherhood advises that any individual who is a professional or amateur magician should be aware that "exposing" the methods of an illusion may result in damage to their relations among other magicians.
However, such codes don't extend to selling magic, though magicians consider the seller of a magic trick should prove that the purchaser intends to learn and perform the trick for others, thereby becoming a magician, rather than simply wanting to know how a magic trick is done out of curiosity.
See also
- AttributionAttributionAttribution may refer to:Something, such as a quality or characteristic, that is related to a particular possessor; an attribute.*Attribution , concept in copyright law requiring an author to be credited...
- Code of non-infringementCode of non-infringementThe Code of Non-Infringement refers to the accepted business practice and custom among certain performance artists, particularly clowns, that an artist's unique performance attributes are proprietary and cannot be used or claimed by another...
- Exposure (magic)Exposure (magic)Exposure in magic refers to the practice of revealing the secrets of how magic tricks are performed.The practice is generally frowned upon as a type of spoiler that ruins the experience of magical performances for audiences.-Background:...
- Masked Magician