Teller Prevails in Lawsuit

[Dustin Stinett]

Magic 1, copycats zero:

http://www.hollywoodreporter.com/thr-es ... gic-690347

[Richard Kaufman]

The judge explicitly ruled that magic tricks are not subject to copyright protection, but that the elements of the presentation are. As if it were a play. Same thing Houdini was trying to accomplish when he recorded his vocal presentation for the Chinese Water Torture Cell.

More to come according to the article:
"The case now likely goes to trial on the question of what damages are to be awarded because the judge finds that Dogge has raised a genuine dispute of material fact whether he willfully infringed upon Teller's copyright. If a jury finds Dogge's misappropriation to be willful, Teller will be entitled to up to $150,000 in statutory damages. If not willful, Teller might get up to $30,000. Besides copyright, Teller also has an unfair competition claim, and the judge is throwing this to a jury as well to determine whether Dogge's YouTube videos were likely to cause confusion as to Teller's involvement with Dogge's commercial activity."

[Tom Stone]

The judge explicitly ruled that magic tricks are not subject to copyright protection

...in America.

The judge also seem to say that Pantomime is "the art of conveying emotions, actions and feelings by gestures." ... also in America, I guess. In other parts of the world, work within pantomime is still pantomime even when no "gestures" are done, and even when there are no spectators to convey anything to.

[Pete McCabe]

...work within pantomime is still pantomime even when no "gestures" are done, and even when there are no spectators to convey anything to.

Tom,

What would "pantomime with no gestures" look like? Is there a video I can look at?

[Tom Stone]

...work within pantomime is still pantomime even when no "gestures" are done, and even when there are no spectators to convey anything to.

Tom,

What would "pantomime with no gestures" look like? Is there a video I can look at?

Maybe this is an idiomatic misunderstanding on my part?

Isn't "gesture" meant to be interpreted as a form of non-verbal communication or non-vocal communication in which visible bodily actions communicate particular messages, either in place of, or in conjunction with, speech.

If so, then what you are asking for can be a simple dance.

[Tom Stone]

Tom,

What would "pantomime with no gestures" look like? Is there a video I can look at?

The misconception, as it appears to me, is the idea that a pantomime just is a subset of storytelling (written or spoken) - a small circle within a larger circle.

But it's not. Pantomime is its own art, separate from written and verbal drama - to use pantomime to emulate stories best told orally or in writing can never become anything else than substandard. Fortunately, those limitations are not valid, regardless of what any american judge claim. It is its own circle.

Here's an example taken at random. Do you find any particular message that is conveyed to you through gestures?

[Richard Kaufman]

American judges decide the law of the land. They don't "claim" anything.

[Tom Stone]

American judges decide the law of the land. They don't "claim" anything.

American judges decide the law of one land. And as shown by Mark Ciavarella and others, that "law" can be whatever you pay it to be.
And when it comes to areas that are not limited by national borders, then yes, then whatever an american judge says is just simply a claim, and nothing else.

[Syd]

Tom Stone wrote, "American judges decide the law of one land. And as shown by Mark Ciavarella and others, that "law" can be whatever you pay it to be."

Tom, I hope your statement is merely reflective of a language issue, Overwhelmingly American judges attempt to be fair and follow the law in their rulings. If your implication is anything other than that your thoughts are incredibly misguided.

As far as judges deciding the law of one land, that is true everywhere.

I have not read the decision of the court. I cannot discern based on the poorly written article whether or not the judge found liability or whether the result is merely that of overcoming a motion for summary judgment,

As to the Court's decision as to copyright and the protection of the effect itself he is correct. The only way Teller could protect it would be to Patent it which would necessitate the revelation of the method.

[Richard Kaufman]

Tom is more than able to express himself clearly, and he means exactly what he wrote. He holds very strong views on this subject that are in line more with the laws of the EU, and have little to do with the laws in the United States.

[Tom Stone]

Tom is more than able to express himself clearly, and he means exactly what he wrote. He holds very strong views on this subject that are in line more with the laws of the EU, and have little to do with the laws in the United States.

Richard is correct. You can put "very strong" in bold.

Problem is that the US is trying to maintain a "have the cake and eat it" approach, where they claim to be a part of the Berne convention, to get all the benefits from it, while shying away from all the obligations - stubbornly maintaining a grip on their old incompatible and obsolete system. That borderline stance is not tenable, and at some point in the future a choice have to be made. Either go back fully to the old national copyright system, or join the international convention... or, as seems more and more likely, become jousted out of the international convention.

[Richard Kaufman]

I believe Tom and I hold the same point of view regarding artists' rights. But the law of the land is the law here.

[Jonathan Pendragon]

Having spent more time in court than I wish to remember, I can honestly say that what's in the law books and what happens in court are quite different. American legalese is a language unto itself. I personally watched as judge and lawyers retired to the holy of holies to work out deals.

Thank God for Tom Stone's strong opinions (my apologizes to Penn).

Teller's victory is a victory for the creative. Over the years I have observed an ad hoc algorithm employed by those who rip-off others material. It begins with minute deconstruction and ends with infinite rationalization. It's [censored] that hurts those who create and those who actually develop through original content.

PS
I thought the color of the orange-red bucket in the fish trick was intentionally chosen; a "Red Herring," but Thompson said not. I would lie say it was intentional.

[Syd]

Jonathan,

You are right, on occasion. Courts do not always interpret the law correctly. Fortunately most of the time they do. Our system allows for checks and balances but even then a court sometimes misses the mark. It also tends to be those cases, those in which a court or jury gets it wrong, that make the news. The tens of thousands of cases where judges and juries get it right are not newsworthy and lost into oblivion. No one claims that our system is perfect but I do believe it is the best in the world.

[Bob Farmer]

Understand what the judge said when he said magic tricks cannot be subject to copyright. What he said is nothing new and it's not even novel. It's like saying rat traps cannot be subject to copyright.

Copyright works likes this: you create something. If it fits into one of the categories in the copyright act (literary work, artistic work, pantomime, etc.), it attracts copyright, if it doesn't, it doesn't.

"Magic tricks" is not a category covered. Nor are rat traps. But, if the "magic trick" qualifies under any category, it will be subject to copyright. Teller picked pantomime and won. If he had picked some other category he may have lost.

What about rat traps? Imagine an Andy Warhol rat trap. It's a rat trap, but it's also an artistic work and/or a work of sculpture, so it gets copyright.

Saying that magic tricks (or rat traps) can't be copyrighted is simply wrong--they can be if you fit them into the right copyright category.

Understand that the judge was not making a blanket statement about magic tricks, he was simply pointing out that copyright law doesn't recognize that as a qualifying category.

[Brad Jeffers]

"Magic tricks" is not a category covered. But, if the "magic trick" qualifies under any category, it will be subject to copyright. Teller picked pantomime and won.

If I were to present a scripted version of Teller's Shadows, would I then be exempt from liability, as I would not be infringing on the pantomime copyright, only on the non-copyrightable magic trick?

And how extensive would the script have to be?

Could I merely say "watch closely", and then proceed with the routine, and have this qualify as a scripted presentation?

[Syd]

Bob is correct, with regard to Copyright protection. Rat traps and magic tricks can both be protected. The appropriate mechanism is Patent protection. That simply wasn't done here. Unfortunately Patents require the level of detail which would expose the trick. Many effects are patented. In fact, there is at least one, if not two, books that compile those patents.

[Bob Farmer]

I don't agree that a patent would work, especially if there was nothing new or inventive about the rat trap or the magic trick. Plus patents are really expensive, take years and run out quickly compared to copyrights.

As to the script: if you scripted the pantomime, that would be a derivative work, still controlled by the copyright owner of the pantomime. As to how much, that's up to the court--there is no percentage.

Check this out:

http://itlaw.wikia.com/wiki/Pantomimes_ ... phic_works

[Brad Jeffers]

A patent as to the mechanics of the method would be circumvented by the use of a different method to accomplish the same effect.

But since this is not a patent infringement case the method is of no importance.

In fact, part of Dogge's defense was that his presentation did use a different method.

The judge ruled, "By arguing that the illusion is different than Teller's, Dogge implicitly argues about aspects of the performance that are not perceivable by the audience. In discerning substantial similarity, the court compares only the observable elements of the work in question. Therefore whether Dogge uses Teller's method, a technique known only by various holy men of the Himalayas, or even by real magic is irrelevant, as the performances appear identical to an ordinary observer".

[Tom Stone]

Check this out:

http://itlaw.wikia.com/wiki/Pantomimes_ ... phic_works

Bob, it seems the following can be read in two ways:

Choreography is the composition and arrangement of dance movements and patterns usually intended to be accompanied by music.

The first way is:
Choreography is the [composition] and [arrangement] of [dance movements] and [patterns] usually intended to be accompanied by music.
The second way is:
Choreography is the [composition and arrangement] of dance*[movements and patterns] usually intended to be accompanied by music.

That is: If read the first way, an arranged pattern that isn't exactly dance but is intended to be accompanied by music can be considered a choreography. If read the second way, it can't.

In your view, what do they mean?

Also this:

pantomime is the art of imitating or acting out situations, characters, or other events

Is A = B the same as B = A here?
That is:
If Pantomime is the art of imitating a certain situation (let's say something that can't be done for real) - does that also mean that the art of imitating a certain situation (let's say something that can't be done for real) can be considered a Pantomime?

Finally, the judge (or the article) seemed to claim that:

pantomimes, the art of conveying emotions, actions and feelings by gestures.

But itlaw.wikia.com says:

pantomimes and choreography need not tell a story or be presented before an audience

...which seems to indicate that nothing have to be conveyed. Is the former or the latter correct?

[Syd]

Tom,

I'm not sure this helps, but a quick review of relevant authority lead me to this:

A claim in a choreographic work must contain at least a minimum amount of original choreographic authorship. Choreographic authorship is considered, for copyright purposes, to be the composition and arrangement of a related series of dance movements and patterns organized into an integrated, coherent, and expressive whole.Simple dance routines do not represent enough original choreographic authorship to be copyrightable. Id. Moreover, the selection, coordination or arrangement of dance steps does not transform a compilation of dance steps into a choreographic work unless the resulting work amounts to an integrated and coherent compositional whole. The Copyright Office takes the position that a selection, coordination, or arrangement of functional physical movements such as sports movements, exercises, and other ordinary motor activities alone do not represent the type of authorship intended to be protected under the copyright law as a choreographic work.

Registration of Claims to Copyright, 77 FR 37605-01

Syd

[Tom Stone]

Tom,

I'm not sure this helps, but a quick review of relevant authority lead me to this:

Choreographic authorship is considered, for copyright purposes, to be the composition and arrangement of a related series of dance movements and patterns organized into an integrated, coherent, and expressive whole.

That doesn't help. Still confusion between [dance movements]/[patterns] and dance*[movements and patterns].
The clip below is, to my eyes, a choreographic work - but it isn't dance. It is called "mime" by the originator, but it doesn't convey a story through gestures.
If they mean dance movements and dance patterns, the work is not choreographical. But if they mean patterns, as in patterns of movements, then the work is choreographical.

In Europe there is no doubt that this is a choreographical work. In the US - who knows?