Is David Blaine Suing Magicians?

[Joe Pecore]

Originally posted by Wayno:

Then there is the ruling of "There is simply no copyright protection afforded to the idea of revealing magic tricks" which came from Judge Diarmuid O'Scannlain in a magic exposure case. Which has set a legal precedent for ALL future cases.

I believe that case was about making a show about "exposing magic tricks" in general. Fox's "masked magician" show was being sued by Rice who wrote the show "The Mystery Magician". I don't think that case would have any bearing in this one since Blaine's show was not about "exposing a trick", but rather performing a magic trick (that may be under copyright protection).

[NCMarsh]

Whether it is legally required or not. If you are doing a major, career creating (in the case of Blaine)network television show; it seems that the gentlemanly thing to do is to take care of the people who have taken care of you.

If someone has created and published something so strong that you think it is worth putting in front of millions, even if you don't want to negotiate exclusive tv rights (which I take to be the motive for dealing with Moden), why not earmark a tiny fraction of that multimillion dollar budget to send thank you checks to the hard-working, obscure guys who have created the stuff that has enhanced your national reputation?

Best,

N.

[Guest]

Interesting point Nathan. The question for me is how far would you go back? Is Chuck the first one who ever put a magnet on a string? I assume Blaine rightfully bought the item in question. Why would additional monies need to be paid if he actually performed the trick?
Following your argument monies need also be paid to the manufacturer of the T-shirt Blaine wore during the TV show. One could argue that without the snappy T-shirt Blaine would not have gained fame.......
I am feeling that none of us really understands what Chuck is trying to do. I certainly don't at this point. I am pretty sure his complaint is not that Blaine actually used the Raven.
To me it seems that this thread might be a way to bring attention to a product that is not selling as fast as it was when it was first introduced. If Chuck claims this is due to the fact that Blaine exposed the gimmick, I would rather state that it might be due to the fact that the market is becoming saturated (wrong spelling?) for that kind of gimmick.
IP law is difficult and very very costly to actually pursue. I do not believe that Chuck stands a chance since the Raven is a gimmick he actually markets for performance by others.
I stand with Geno on this one: Who is the lawyer? Sounds like he is ripping you off Chuck.....

[Guest]

Originally posted by Nathan Coe Marsh:
Whether it is legally required or not. If you are doing a major, career creating (in the case of Blaine)network television show; it seems that the gentlemanly thing to do is to take care of the people who have taken care of you...

The question here is about rights of expression and selling copies of what expressions are an intrusion upon the rights of the inventor.

Without specificity and even clarification we are looking at angry words and claims of righteousness which are for now... absurd.

What specific right to what specific work has been infringed?

[NCMarsh]

Originally posted by Jonathan Townsend:

Originally posted by Nathan Coe Marsh:
[b] Whether it is legally required or not. If you are doing a major, career creating (in the case of Blaine)network television show; it seems that the gentlemanly thing to do is to take care of the people who have taken care of you...

The question here is about rights of expression and selling copies of what expressions are an intrusion upon the rights of the inventor.
[/b]

I am asking how we have come to the level of legal rights and responsibilities. The law deals with those transgressions that the polity finds severe enough to require force to deprive a criminal offender of life, liberty, or property; or to force one citizen to compensate another in terms of material property.

In either case, whatever has happened requires -- in someone's view -- the force of the entire polity to physically compel conduct. When we have reached that point, I would suggest that something far more basic has already failed.

I would suggest that it is Mr. Blaine's failure to be neighborly that has created this lawsuit -- whether it has legal merit or not. Wolfgang would like to parse that notion in a legalistic way -- asking about what "could" be argued, and about what comes to count as a contribution.

The law needs clear objective standards that are clearly promulgated because its business is material compulsion. It can materially harm or benefit individuals, and so there is strong temptation to abuse vague standards in order to harm another or help oneself. Were the proposition that performers must compensate those who have significantly contributed to their success a law, then we would have to wrestle with the messy vagaries brought up by Mr. Wollet.

It is not a proposition of law. It is neither a proposition that comes from a clearly articulated external standard such standards always fail in the light of the complexity of human conduct. Socrates can show Meno that he cannot articulate the nature of virtue, and yet we are left strongly uncertain that Socrates could either. The notion of neighborliness, like the (perhaps) related notion of virtue, is one that we all possess intuitively and internally.

The law must blindly place equal weight in sophistry and right reason, but individual human beings can easily say yes, one could make an argument about his tee-shirt; but that argument would be sophistry. We can also say just because the principle could be taken to ridiculous extremes, and just because there are much fuzzier cases, doesnt mean you dont act in the cases that aren't subject to those complexities.

The bottom line: To have sent Chuck a Thank You check (as Penn & Teller have been known to do for creators), would have created a great deal of good will from the outset. It may not have been enough to counter the damage done to Chucks business by the subsequent wide exposure of his effect, but I wonder if he would be seeking legal remedy had Blaine conducted himself as a gentleman.

[Guest]

Originally posted by Nathan Coe Marsh:
The bottom line: To have sent Chuck a Thank You check (as Penn & Teller have been known to do for creators), would have created a great deal of good will from the outset. It may not have been enough to counter the damage done to Chucks business by the subsequent wide exposure of his effect, but I wonder if he would be seeking legal remedy had Blaine conducted himself as a gentleman.

You bring up some interesting points and this is certainly a unique situation.

Regarding Penn & Teller, they typically do not do store bought effects. P&T paid Banachek for his Bullet Catch, an effect that probably never would have been marketed.

In most cases what we've seen in the past, with Henning & Copperfield, was effects that had never been on the market before their special aired. Immaculate Connection was like that.

Along comes Blaine with a $100 investment in stock items and gets a national TV special. Certainly before shooting his first special, the Blaine camp wasn't thinking they were going to create a sensation that would spawn "Blaine Exposed" websites and ebooks.

So I have to ask this question: "As consumers and performers, what are our expectations with our purchases?"

[Guest]

[/QUOTE]I think what Mr. Leach is going to argue is that he has the copyright to the Raven "scipt"/presentation (not the method). [/QB][/QUOTE]


Blaine performed the effect outdoors, vanishing a coin from the back of the hand of a fat kid, under the premise of doing "street magic".

Mr. Leach performed the effect indoors, solo, and in the context of a pitchman demo'ing a product.

A lawyer would argue that these are clearly two different presentations, if necessary, bringing in the fat kid to testify :)

As to the "script" issue, I'm not sure. I can't recall offhand, but prehaps Mr. Leach did utter the word "Watch" during the demo. If so, this could swing the case in his favor. :whack:

[Joe Pecore]

Originally posted by Brad Jeffers:
Blaine performed the effect outdoors, vanishing a coin from the back of the hand of a fat kid, under the premise of doing "street magic".

Mr. Leach performed the effect indoors, solo, and in the context of a pitchman demo'ing a product.

Mr. Leach's lawyers could argue that copyright protects you from all derivative work also. There was a playwright that sued and won a case to get them shut down where a production company tried to put on one of his plays using all female characters.

[Guest]

Originally posted by Chuck Leach:
My opinion of Blaine's actions is this: 'Hey, I'm a millionaire. I can use your product any way I want...

My opinion (although I'm no millionaire) is that the product that Blaine bought is now his and he can use it any way he wants. It's now his piece of elastic, his magnet, and his loop of fishing line.

If he wants to use it to hang his clothes on, use it to walk his dog, or use it to stick pictures of Fiona Apple to his refridgerator, that's his choice.

And if he wants to use it to vanish quarters on tv, that's his right also.

That's the use you intended it for, after all.

[Guest]

Originally posted by Brad Jeffers:

Originally posted by Chuck Leach:
[b] My opinion of Blaine's actions is this: 'Hey, I'm a millionaire. I can use your product any way I want...

My opinion (although I'm no millionaire) is that the product that Blaine bought is now his and he can use it any way he wants. It's now his piece of elastic, his magnet, and his loop of fishing line.

If he wants to use it to hang his clothes on, use it to walk his dog, or use it to stick pictures of Fiona Apple to his refridgerator, that's his choice.

And if he wants to use it to vanish quarters on tv, that's his right also.

That's the use you intended it for, after all. [/b]

Again, people are confused to exactly what Chuck is alleging Blaine did. The alleged copyright violation is NOT the use of the Raven device on TV. Chuck alleged Blaine violated his copyrighted "artistic expresion" of the performance. Whether or not Blaine's performance of the Raven infringes Chuck's copyright is a question for the finder of fact in a court case, but Chuck has articulated a prima facie case for copyright infringement. It is clear that Blaine has not obtained a license or purchased the television rights to Chuck's copyrighted artistic expression.

Copyright does not protect ideas. It protects expressions of ideas. Many people do not understand this important distinction. For example: Mickey Mouse is a cartoon mouse. The copyright on Mickey Mouse does not protect the idea of a cartoon mouse, rather it protects the "artstic expression" of this particular cartoon mouse (e.g. the distinctive ears, the red pants, the shape of Mickey's body, etc.) The artistic expression of Mickey Mouse is protected by copyright, the "idea" of a cartoon mouse is not. You can have a different cartoon mouse that does not violate the copyright on Mickey Mouse because it may be artistically expressed in a different and unique way (e.g. Mighty Mouse is a cartoon mouse that wears a yellow suit and red cape that is expressed in a completely different artistic way than Mickey Mouse, so there is no copyright infringement). Do not confuse ideas and devices with "artistic expresssion." Copyright only protects the artistic expression, not ideas and devices. Again, Chuck is not alleging that Blaine violated his copyright by using the raven, rather, he is alleging that Blaine violated his copyrighted artistic expression of performance.

Secondly, people continue to think that once you buy something that is copyrighted, you have the right to do whatever you want with it. No, you don't. As a purchaser of copyrighted material, you only have rights that you have purchased or have assigned to you. For example, if you bought the copyrighted book the Da Vinci Code, you have the right to read the story. Most people understand that copyright law prevents you from making copies of the book and selling it. But, you also don't have the right to take the story and make it into a movie, a T.V. show, or a play just because you bought a copy of the book. One must purchase or license the dramatic, television, and motion picture rights from the author. These rights are not automatically given to you just because you bought a copy of the copyrighted work. The author or copyright owner has the right to divide up the different rights in a copyrighted work and sell them as he pleases. In the case at bar, Chuck is saying he owns the televsion rights to his copyrighted artistic expression, Blaine did not obtain the TV rights and allegedly infringed his copyright, and Chuck should be compensated. Again, I'm not saying that Chuck would win, but he is alleging enough to present a prima facie case that may survive a summary judgement motion to dismiss in a court case. I'm just not convinced that his artistic expression is enough to be protected by copyright, but then again, I haven't seen both performances to compare.

Also, people continue to think that one must place specific "reservations of rights" on all their copyrighted material. Again, under current international copyright law, The Berne Convention, a reservation of rights notice is not required at all anymore, and copyrigh rights are automatically created when the work is fixated in a tangible form.

For more information of an author's copyright rights... check out this copyright rights primer by Claire E. White.

http://www.writerswrite.com/journal/dec97/cew3.htm

[Steve Bryant]

How can you believe such crap (re magic tricks) and live with yourself?

The answer man holds up an envelope.

The answer is ... 1 to zero.

And the question is ...

How many people will ever buy another magic trick from Chuck Leach?

[Guest]

Socrates and legalese aside, I think what Chuck is alledging is that Blaine put the copyrighted "artistic expression" of the Raven on video and then sold that "artistic expression" to ABC for profit. The sale for profit is a byproduct of the special that contains the "artistic expression" being paid for by ABC. In addition, he has benefited from duplication of the special containing the performance as it has run on other television networks. Finally, despite the fact that there was not a "TV performance rights reserved" disclaimer, the copyright itself prevents the use of any copyrighted "artistic expression" being performed on television if money is being exchanged hands.

I think this argument could run into many dead ends. Perhaps shakiest of them all is that Blaine has Kallush on his side, and you need look no further than Kalush's research library and database to probably find someone else printing a similar "artistic espression" with a similar device in the last 400 years.

[Guest]

Between Chuck, Oliver and Aaron (and others maybe?), the term artistic expression has been used many times, and clear examples of it have been provided for characters like Mickey Mouse. As I read it, Chuck is claiming that Blaine has made unauthorized use of Chucks copyrighted artistic expression.

For me, its very difficult to understand and agree/disagree with Chucks beef without knowing specifically what that artistic expression is, and specifically how Blaine has appropriated it without having the right to do so. Maybe Ive missed something in this thread, but if not, am I the only knucklehead here who doesnt have a clue what exactly that artistic expression is?

Assuming someone can answer that question, the follow-up (for me at least ) would be, since Chuck doesnt seem to have an issue with Blaine using the gimmick(s) (and maybe Im wrong on that point, but at least Oliver seemed to think so when he wrote, The alleged copyright violation is NOT the use of the Raven device on TV), can someone provide an example of how Blaine could use Chucks gimmick on TV, sell videos, etc., without running afoul of Chucks copyrighted artistic expression?

Chuck? Oliver? Aaron? Anyone?

Clay

[NCMarsh]

I take Chuck's claims about the way that internet exposure has harmed his interests seriously. Looking a bit further, however, they don't seem as credible to me.

A search for "Raven" on ellusionist.com turns up 12 products that include, feature, or require Chuck's device. Chuck appears in an instructional dvd apparently produced by the ellusionist folks.

The Raven was introduced in 1993. David Blaine's Street Magic appeared in 1997. The product had, by then, gone through its life as a hot, new item. Could a second wave of interest really harm a four year old product that deeply?

Indeed, Ellusionist.com appeals to a market that would not exist without David Blaine. They have, as I understand it, a pretty impressive market share -- and many of their customers may never enter the mainstream magic community.

Essentially then, Mr. Blaine's special created a new market that Mr. Leach has tapped into. Obviously, I don't have access to Mr. Leach's numbers, but it is tough for me to accept that a new, high-turnover market of casually interested beginers flocking to a site that prominently markets his product is bad for business. Indeed, given the size of the serious magic community, I strongly doubt that Mr. Leach would be able to sell nearly the same number of units.

Again, I don't have the numbers so mine is not the voice of authority -- but I do think a look at the market at least poses serious questions about the validity of Mr. Leach's claim.

Best,

N.

[Brad Henderson]

There are two problems with this. One, the diea of changing one coin into another, on the back of someone's hand or not, was NOT the artistic creation of Chuck Leach. I was doing that with the old dime and penny set and magnetic tipped pen ages ago. Also, I did something similar with the old holdout Al Cohen sold in the early 70's. It used blue tack instead of a magnet. Would magnet versus blue tack changes thing? In short, I cannot see what "artistic expression" was created by Leach. What Chuck created WAS a tool - specificaly he put together a number of existing ideas into a new unit that did an established job differently. Chuck did NOT create an artistic expression, those effects have been floating around for ever.

Second, if Chuck was so hurt by seeing Blaine's use, why didn't he take action after the first special air? Or the second?

Why doesn't he go after the "youtube" videos of kids using his item?

Could it be because Blaine wasn't a millionaire at the time of the alleged greivance? Seems to me, if this was something that truly injured Chuck, he would have done something about it when it happened and not wait for David to become wealthy first.

Is Chuck the first to do this? Karmilovich didn't sue Stetson, Salem ,etc when they used MOABT.

What a tangled web we weave...

[Guest]

To answer the original question, no David Blaine is not suing magicians... He's just suing you. :)

[John LeBlanc]

Originally posted by Joe Pecore:
Mr. Leach's lawyers could argue that copyright protects you from all derivative work also.

Any lawyer can -- and eventually will -- argue anything in pursuit of the goal. The sun rises, gravity sucks, etc., etc.

If derivation is in question (and I don't think it is) then why aren't we all opening to the Book of Bobo, Chapter 11, verse...well, page 259...Figure 3.

John
http://www.escamoteurettes.com/blog/

[Guest]

Clay,

First, copyrights and the concept of artistic expression are not very easy to understand, so dont feel that you are a knucklehead for not knowing what it means. In fact, I applaud you for making the effort to understand this complicated issue. Forget the Raven was even used, instead, lets use an easier example. Lets pretend someone decided to put on a white glove on his left hand , with black button eyes, and with bunny ears and do a vent act and sing a duet, If I had my way. Most people in the magic world would recognize that in this example, thats Jay Marshalls signature act and it is being copied. Without permission, to copy his entire act is wrong ethically, and it is a violation of Jays copyright on his specific artistic expression of the performing a vent act. (Unfortunately, many magicians steal material from others all the time). I doubt anyone would seriously argue that there is not copyright infringement in this proffered example, if each and every element of what was original and unique to Jays act was copied. Anyone can perform their own original vent act, but you cant just copy someone elses entire act and expect that to be ok. Chuck is arguing that his artistic expression of the coin vanish performance is similarly protected by copyright. Doesnt matter whether a Raven was used to do the vanish, as copyright only protects the artistic expression, not the method or idea. Whether Chucks artistic expression is protected by copyright is not completely clear. I think Chuck has a lot tougher case to prove, as hes going to have to prove that his performance of vanishing a coin is unique and original enough to warrant copyright protection and that his particular artistic expression of vanishing a coin is not so general that it belongs in the public domain. Ive seen courts and juries come back with decisions that dont make much sense to me, so if you think this issue is as black and white as it seems, you probably are mistaken.

Furthermore, the dramatic, movie, and television rights to a copyrighted work are separate rights, and one must obtain a separate license or purchase that specific right to use a copyrighted work in those mediums. Just like buying a copy of a screenplay to read, it doesnt mean that your purchase gives you the right to use the screenplay to make a movie of it or to produce a play based on it. These rights are separate rights that must be obtained or licensed by the copyright owner.

For magic tricks, it isnt exactly clear what intellectual property rights the magic inventor/author has. Patents cover ideas/inventions. Copyrights cover expressions of ideas. Trademarks and service marks uniquely identify a product or service. A magic trick is sort of a hybrid. Part idea/invention/method and also part of an expression of that idea (the performance, script, patter, staging, etc.) and it can even have a trademark associated with the trick/product. Trying to protect a magic trick using the current framework of intellectual property rights is like trying to shove a square peg into a round hole, it just doesnt fit very nicely.

When you buy a magic trick, you can assume you have the license to perform the trick live. Why would it be sold if you couldnt perform it, and it has been customary that magic tricks are sold to be performed. But dont assume that because you bought the trick, that you have a license to use the copyrighted material in a television, motion picture, or play as these are separate rights that you dont automatically have just because you bought a copy of the copyrighted material. Chuck has alleged that Blaine didnt have a license to perform his copyrighted performance on television. Specifically, that the television right is reserved by Chuck, and under the Berne Convention on Copyrights, Chuck does not need to remind you that all rights are reserved or provide any such notice in the instructions or video of his performance. Said another way just because there is no notice, you cannot assume that any special rights, such as television rights, are not reserved or have not been sold exclusively to someone else.

In the world of television, the writers get paid for the writing. The actors get paid for the acting. The composers get paid for the music. They even may get royalties and residual payments each time the TV show is re-broadcast or sold as a DVD, VHS tape or other format. Why shouldnt the creator/author of a magic trick also be compensated in the same way is really what the fundamental point that Chuck is arguing, that Intellectual property rights currently do not protect creative works/inventions of magic creators the same. If Blaine paid another magic inventor to exclusively use a magic trick on a television show and did not do so to Chuck, than Chucks argument seems a bit stronger, but Chuck still has a very high hurdle to leap in proving his infringement claim.

Those that ridicule Chuck for trying to determine and protect his intellectual property rights actually are belittling the art of creating magic, making it not as important as other creators like writers, artists, composers, and actors. Is that what you really want? Are magic performances so trivial that they are not worth protecting at all? I guess so, as Ive seen so many magicians rip off each others entire acts.

[Guest]

A magic utility gimmick is not an actor, musician, writer, etc. And vanishing a coin off the back of someones hand does not constitute a play or a story or, for that matter, artistic expression.

The reason you dont see more support for this on these forums is not because magicians dont want to support intellectual property rights, but because most of us still have no idea what is being alleged. And from what we do understand it seems like an awfully piss-poor case to set a precedent with.

Its often said that the best magic tricks are the ones that can be described in one sentence. Im beginning to think the best lawsuits might be the same.

- The selected card changes from red-backed to blue-backed.
- You beat my sister to death with a rock.

See? Those things I can get behind.

[Guest]

Originally posted by LightsOut:

The reason you dont see more support for this on these forums is not because magicians dont want to support intellectual property rights, but because most of us still have no idea what is being alleged. And from what we do understand it seems like an awfully piss-poor case to set a precedent with.

Its often said that the best magic tricks are the ones that can be described in one sentence. Im beginning to think the best lawsuits might be the same.

Just like you can lead a horse to water, you can't make him drink it. You can explain what "artistic expression" is a million times and some people just won't understand.

It is a shame that some can only understand concepts that can only be described in simple "one-sentence" descriptions. That truly is sad. The argument that, "I didn't understand the law, so I couldn't have broken it." is unsuccessfully made everyday in courtrooms, but it just doesn't work.

In truth, I think most magicians don't want to enforce intellectual property rights for magic creations and performances because so many find it much easier to just rip-off other's creative expressions and steal their performance, patter, etc. instead of coming up with their own original ideas and artistic expressions for their performances. No one wants to give credit where credit is due, as it is just easier to just copy someone else's work.

[Guest]

Originally posted by Oliver Corpuz:
...
Those that ridicule Chuck for trying to determine and protect his intellectual property rights...

What specifically is claimed? What rights to what property were infringed upon in what way?

[Guest]

Originally posted by Joe Pecore:

Originally posted by Brad Jeffers:
Blaine performed the effect outdoors, vanishing a coin from the back of the hand of a fat kid, under the premise of doing "street magic".

Mr. Leach performed the effect indoors, solo, and in the context of a pitchman demo'ing a product.

Mr. Leach's lawyers could argue that copyright protects you from all derivative work also. There was a playwright that sued and won a case to get them shut down where a production company tried to put on one of his plays using all female characters.

Yes, they could argue all of that. Then Magic, Inc. could come in and argue that Chuck's item was a derivative work, based upon the Don Alan "Impossible Coin Vanish." The McWethy family could also jump in on this, claiming that they are owed royalties, even if Don sold the thing outright to Jay Marshall.

And Chuck would probably have to prove that Blaine was using his gimmick and not some other one.

If Chuck plans to go after Blaine on the basis of the various and sundry illegal copies of Blaines performance that are being sold on the internet, he is opening up a very interesting can of worms.

Unless Blaine is officially allowing these knockoffs, or he is being paid a royalty for these knockoffs, there is no case. It would be like Nike suing Michael Jordan because some backyard knockoff artists were selling illegal copies of Air Jordan shoes.

If Mr. Leach is not using a lawyer who is specifically certified in IP law, he really should seek one out now. It's not the same as the "entertainment law" classes he took in college years ago. Things change, and IP law is the place where it is changing the fastest.

[Guest]

Originally posted by Oliver Corpuz:
No one wants to give credit where credit is due, as it is just easier to just copy someone else's work.

Now there's a pretty sweeping generalization.

[Guest]

Originally posted by Oliver Corpuz:
You can explain what "artistic expression" is a million times and some people just won't understand.

Oliver, I don't think anyone is struggling to understand your definition of "artistic impression" they (me included) are struggling to understand what specific artistic impression Chuck is referring to. Your Mickey Mouse and Lefty examples are clear - but I have difficulty imagining the same sort of unique look applied to a coin vanish. As others have posted, similar looking vanishes have been performed for years. What exactly is Chuck claiming as his artistic impression? Perhaps it's the unique way he moves his hands over the coin, or the way it vanishes at a distance from the hands. Nothing I can think of seems really solidly unique or anything other than a small difference in appearance to previous work. Until Chuck clarifies what specifically he believes the artistic impression he created is (and he's under no obligation to do so) then we're just stabbing in the dark as to whether his case might hold water.

Ian

[Guest]

Originally posted by WolfgangWollet:

To me it seems that this thread might be a way to bring attention to a product that is not selling as fast as it was when it was first introduced.

If that's the case the marketing guy inside me is loving this thread.

E

PS I am selling Ravens at www.comeandgetyourmagnetonastring.com

[Guest]

Originally posted by Oliver Corpuz:
Just like you can lead a horse to water, you can't make him drink it. You can explain what "artistic expression" is a million times and some people just won't understand.

It is a shame that some can only understand concepts that can only be described in simple "one-sentence" descriptions. That truly is sad. The argument that, "I didn't understand the law, so I couldn't have broken it." is unsuccessfully made everyday in courtrooms, but it just doesn't work.

In truth, I think most magicians don't want to enforce intellectual property rights for magic creations and performances because so many find it much easier to just rip-off other's creative expressions and steal their performance, patter, etc. instead of coming up with their own original ideas and artistic expressions for their performances. No one wants to give credit where credit is due, as it is just easier to just copy someone else's work.

Oliver, don't try to argue law or logic with me; it doesn't suit you. You've spent hundreds of words talking and still very few, if anybody here, knows what you're talking about. Are we all that dense or is it because the case can't be stated because it's too ethereal?

So, Oliver or Chuck, please answer the question: What constitutes the artistic expression that was allegedly appropriated?

Once this point is addressed clearly you may find broad support for legal action.

[Guest]

Originally posted by Ian Brodie:

Originally posted by Oliver Corpuz:
[b] You can explain what "artistic expression" is a million times and some people just won't understand.

Oliver, I don't think anyone is struggling to understand your definition of "artistic impression" they (me included) are struggling to understand what specific artistic impression Chuck is referring to. Your Mickey Mouse and Lefty examples are clear - but I have difficulty imagining the same sort of unique look applied to a coin vanish. As others have posted, similar looking vanishes have been performed for years. What exactly is Chuck claiming as his artistic impression? Perhaps it's the unique way he moves his hands over the coin, or the way it vanishes at a distance from the hands. Nothing I can think of seems really solidly unique or anything other than a small difference in appearance to previous work. Until Chuck clarifies what specifically he believes the artistic impression he created is (and he's under no obligation to do so) then we're just stabbing in the dark as to whether his case might hold water.

Ian [/b]

Ian, I agree with you that the artistic impression that Chuck is claiming that he owns the copyright to, whatever it is, is probably not original or unique enough to by protected by copyright.

Im looking at the case at bar the way a court would examine it. Many people are skipping to the end of the lawsuit and looking at what a jury or finder of fact would determine as the verdict.

Im considering and analyzing what one of the first motions a defense counsel would make to dispose of the case if a lawsuit is filed. Usually a defense counsel will file a motion to dismiss and a motion for summary judgment to end the lawsuit as quickly as possible and avoid a trial. In a motion to dismiss, the defendant would argue that even if the claim the Plaintiff is making is true, the law does not offer a remedy. And in a motion for summary judgment, the non-moving party would ask the court to determine that there are no genuine issues of material fact and all the available evidence, even if taken in the light most favorable to the non-moving party, the undisputed facts require the moving party is entitled to win judgment as a matter of law.

If a Plaintiff can survive the dispostive motion to dismiss and also a motion for summary judgment, the case will either go to trial and a verdict will be made or or it will settle. Most cases will eventually settle at this stage because the defendant may not want to take on the risk of losing or stomach the great expense of a trial. The goal of many Plaintiffs in a lawsuit is not to win the case on the merits, but to survive the motions to dismiss and a motion for summary judgment and obtain a settlement.

Is there enough to survive a these motions at the case at bar? No one can say for sure because it will depend on how well the motions are argued, how the judge tends to rule, and a lot of other factors. Again, the judge will not be making any factual determinations at this early stage and factual evidence will be viewed in a light most favorable to the Plaintiff or non-moving party.

I'm with most of you in doubting the artistic expression at issue here is protected by copyright. But this is not our determination to make, rather it is the jury or finder of fact in the court case.

[Guest]

Oliver:

Thank you for the lengthy, well written and obviously well intended response to my post. But, alas, you were answering questions I didnt ask. Although not an IP or entertainment specialist, Im an attorney and understand a fair modicum of the principles on which Chuck is (apparently) basing his case thats part of why I said the Mickey Mouse analogy was a clear example. Most of the essence of my point was echoed by Lights Out: What constitutes the artistic expression that was allegedly appropriated?

Chucks kind of moved to the background since April 28, and Im not surprised. If he has a good attorney, hes probably been advised to clam it, since potentially weak (or strong, for that matter) cases often suffer from a clients public yapping. If, as Chuck initially indicated, his case primarily stems from infringement on the exclusivity of artistic expression, then making statements like The copyright is for the artistic expression, not the hardware (April 27) and following that up with When I first watched the Street Magic Special and saw the Raven prop dangling outside his coat, I was sure he damaged sales (April 28) only muddies the waters and cant help (ultimately, it may not hurt, but its one more apparent contradiction that Blaines suits can argue, meritoriously or otherwise).

As Ian said, Until Chuck clarifies what specifically he believes the artistic impression he created is (and he's under no obligation to do so) then we're just stabbing in the dark.

As a side note, I would qualify Ians he's under no obligation to do so comment. At trial, arbitration, or settlement negotiations (if his case gets that far or is well founded), Chuck will indeed have to explain himself by at least initially claiming facts which, when added up and assumed to be true, state a prima facie tort or statutory violation. If he sues and doesnt do so, his case will get bounced for failure to allege an actionable claim.

Yours in pissing in the wind, :D

Clay

P.S. I wrote the above right after reading Ians post. Now theres more to the thread. Oliver, Im not trying to pick on you here, but I think one could argue that you might be the one jumping the gun here. I dont have any real issues with your summary of the legal procedures, but I think the point many are now making is, What the hell is it that Blaine used/performed without first getting permission from Chuck?." I dont know if youre a lawyer, but if a client came into my office and started making the claims Chuck is making, I wouldnt first worry about explaining what a protected right of artistic expression is or what my client could expect in pre-trial activities Id want to know exactly why/how my client felt hed been harmed, and long before giving an exposition on substantive and procedural legal matters, one of the very first things Id ask would be what did Blaine take that is rightfully and exclusively yours? CHS

[Guest]

There is a problem with Oliver's example of royalties/residuals paid to writers and actors. Residuals are negotiated by the union and by contract. They can be limited or unlimited (this was changed after Star Trek ended up in continuious re-runs for decades, yet the actors' residuals ran out on the fifth showing), but not everyone who works on a film or television show gets residuals. The craftspeople who light the set, shoot the film or tape, direct the photography, record the sound, etc., do not receive residuals or royalties even thought their work can be every bit as creative as that of the actors and writers.

Secondly, the various forms of IP protection have been listed but I've yet to see where an Effect can be protected. The method, yes...the presentation, sure....the secret apparatus, absolutely....but the effect?

I remember some years back a Ken Allen effect where one of those nickels that was hollowed and shimmed would vanish from the palm of the hand when the other hand was simply passed over it. The magnet was hidden under a band-aid on the wrist. When the coat or shirt sleeve fell back in place, the hand could be turned and shown empty. Same effect, different (sort of) methodology...a static magnet instead of a magnet on a string.

And by the way, if I changed the magnet for one that goes up my sleeve on a Jack Miller-type pull instead of into my coat, will Chuck have a problem with that, as the Effect will still be the same?

[Guest]

Clay,

I am playing the role of devils advocate here, arguing the opposite of what most people here saying to keep the discussion going. In the thread, I believe there have been some clearly erroneous posts on current law for notice requirements for copyrights, and there has been some true confusion on exactly what copyright law protects and what an artistic expression is. I dont expect everyone to perfectly understand the legal arguments that have been raised, as most here are not lawyers.

Yes, we are at the point where we really dont know exactly what artistic expression Chuck is claiming has allegedly been infringed and to argue any further whether there is any infringement is a moot point without knowing exactly what the artistic expression at issue is. We dont know and what we think doesnt really matter, as it would be up to a jury or finder of fact to decide.

Im really not advocating that Chuck would win his case, rather, I am pointing out that the issues Chuck raised are very interesting. What Intellectual property rights are afforded a magic creator? Shouldnt magic creators be compensated for their work? Both are interesting questions with no definitive answers.

David yes, a magic trick doesnt seem to be very well protected under current IP protections. Should an effect be protected and how can it be, are both questions that deserve debate. Yes, not all those involved at the creative level are compensated for contributions. Should a magic inventor/creator be?

[Guest]

Originally posted by Oliver Corpuz:
[ Yes, not all those involved at the creative level are compensated for contributions. Should a magic inventor/creator be? [/QB]

Well, it depends if he is an inventor, a creator, or just a guy who finessed another variation of several principles to do a fairly standard effect that has been around before his grandfather was born. Did he create something "new," or did he just come up with a variation on a theme to make a coin vanish?

I can create much the same Effect of the coin vanishing, discernable only by knowledgeable magicians because of slightly different moves, by sleeving. Indeed, some years back, wearing a short sleeve shirt I duplicated the Raven's effect to a magic shop demonstrator by invisibly ditching the coin in my trouser pocket ala a Topit and then pretending to place it in my hand where it vanished. He had no idea what I'd done, yet the effect was much the same.

Absent the supposed dangling/exposure of the Raven(which I can't remember seeing), no one would be certain of the method. Indeed, with regards to that, Chuck has no certain knowledge that Blaine used the Raven to create the Effect. Blaine could easily claim that his Raven broke and he used a back-up method that he won't reveal. Where is Chuck's claim then? Prove Blaine used the Raven and then prove "damages," which are, so far, undefined despite numerous people asking for clarification of exactly what Chuck is claiming.

Hell, a coin on a monofilament with the proper camera angle and the coin pulled out of sight will produce the same result. Where's the Raven in that?

Again, as I understand things, an Effect cannot be protected legally since it is the result of a natural process and alternate natural processes can create the same effect or illusion, as I just illustrated.

I'm sure Blaine's attorney and the legal guys at ABC and Buena Vista have all had a great laugh over this and gotten a few more billable hours out of it.

[Guest]

Originally posted by Oliver Corpuz:
Yes, not all those involved at the creative level are compensated for contributions. Should a magic inventor/creator be? [/QB]

One other point, that isn't the question here. The question is if Chuck Leach has a valid claim against David Blaine. Since Chuck hasn't defined his claim or his damages, or exactly what the "license" will cover, everything else is, as Clay pointed out in perfect legalese - "pissing in the wind."

[Guest]

Originally posted by John LeBlanc:
Any lawyer can -- and eventually will -- argue anything in pursuit of the goal

John, good lawyers do not.

Clay

[Guest]

It is my understanding that the plaintiff stated that he isn't in this for the money, instead it is based on principal.

Without knowing what his demands are, possibly he isn't seeking legal damages (money from a license), rather the remedy he is seeking is in equity. In other words he believes a right he owns has been infringed and he is asking a court to order an injunction to make the defendent stop the infringement. (e.g. stop selling the performance, remove the segment from future broadcasts)... If a copyright owner is infringed, he need not ask for a legal remedy, but may also seek an equitable one.

[Guest]

Oliver:

I suspect those muffled thumping sounds were hearing are the lay GFers nodding off and keeling over from our collective civil procedure lessons. Until Chuck or someone else enlightens us with relevant facts, seems like the jury is going to remain out* on this one.

Clay

*collective groans in the background swelling into a chorus due to continuing use of legalese ....

[Matthew Field]

I still want to learn more about David Acer's Air Conditioner trick that he's performing on TV.

Matt Field

[Guest]

Good to hear the A/C revived you, Matt! :D C.

[Guest]

Could someone please tell me...

First, exactly what is Mr. Leach's complaint?

Second, does he have a leg to stand on?

Third, and most important...PLEASE tell me how can I get David Blaine to perform one of my routines on television.

[Guest]

Clay,

You're absolutely right. This discussion thread has become way too obtuse. Let's just wait to see if any more pertinent information comes to light. (But I too would like to hear more about Acer's a/c trick! :D )

- Oliver

[John LeBlanc]

Originally posted by Oliver Corpuz:
In other words he believes a right he owns has been infringed and he is asking a court to order an injunction to make the defendent stop the infringement. (e.g. stop selling the performance, remove the segment from future broadcasts)...

Well, if that's the case, someone had better alert Norm Abram and guys like him that they can no longer video tape themselves building stuff with tools they purchased; they'll have to start making their own sliding crosscut saws and plunge routers before using them in front of the camera.

Originally posted by Oliver Corpuz:
If a copyright owner is infringed, he need not ask for a legal remedy, but may also seek an equitable one.

Have you witnessed Chuck state he wants no money?

John
http://www.escamoteurettes.com/blog/