Ed Marlo and copyright

[David Alexander]

In response to Brad's post, here is one person's thoughts on their research into copyright and collage.

http://www.funnystrange.com/copyright/

[Brad Henderson]

Are the rules different for magic?

Yes.

Why?

[David Acer]

Version 2: You write "boil" on a piece of paper and drop that paper into a glass of water, and it boils

How about writing the word "Jello" on a small envelope, then opening it and pouring a non-specified powder from it into a bowl filled with 4 cups of a non-specified clear liquid, on the side of which you write the word "water." Refrigerate for one hour, then remove bowl and take a bow.

[Richard Kaufman]

This is interesting:
http://www.templetons.com/brad/copymyths.html

And this:
http://www.publaw.com/biography.html

An excerpt from publaw:

Copyright Infringment
Allegations involving copyright infringement frequently occur when the author of an unauthorized biography makes use of the subject's published or unpublished letters and papers or possibly from oral conversations the author may have had with the subject.

In Salinger v. Random House, Inc., the author's use of extensive quotations from unpublished letters written by J.D. Salinger, the subject of the biography, without Salinger's permission was deemed to be copyright infringement. Under copyright law the writer of unpublished letters has the right to control the first publication of those letters.

Criticism of the Salinger decision as well as other copyright infringement decisions based upon what was believed to be excessive protection for unpublished works, resulted in Congress amending the Copyright Act. U.S. copyright law now provides that if a work is unpublished and it is used without permission of its author then the fact that the work was unpublished by itself would not be sufficient to constitute copyright infringement. Subsequently, in Wright v. Warner Books it was held that when a work is one of "criticism, scholarship or research," that quotations from unpublished personal letters and journals might constitute fair use.

In Estate of Hemingway v. Random House, Inc., which concerned the publication of portions of conversations between the author and Ernest Hemingway, the court ruled that the author of Papa Hemingway did not infringe the common law copyright of these conversations by including them in a book on Hemingway's life. The court stated that even if the author used verbatim some of Hemingway's words that such use was minimal and qualified as fair use of the material.

Copyright infringement is the one legal action that could most commonly lead to an injunction. This is because an injunction is a specific statutory remedy enumerated in the Copyright Act. It has been held to be in compliance with First Amendment concerns because the injunction is not being used to prevent publication of an unauthorized biography but is instead only being used to prevent the publication of another person's copyright protected works.

Tip: Do not forget that copyright law protects unpublished as well as published works.

[Brad Henderson]

I have been thinking about the notion raised here concerning changing elements (method) of a piece and whether or not those changes would impact other elements (the effect) of a piece to the degree they would be pereceptible.

While it is clear that method affects effect, I think we can argue that it is possible to change a method and maintain a near duplicate of the original effect if those changes were carefully done. Of course, some changes in method may produce a stark enough change in the overall perception of the piece to create the impression it is something different.

BUT what about the converse. It is possible to use an identical method to produce several different effects/phenomena.

For example, having an audience member select a card from a one way deck and revealing that card could be done as telepathy, clairvoyance, psychic influence, hypnosis, estimation/gambling skills etc

If someone lifted another's exact method but reframed it into a different 'effect' would that consititute copyright infringement in tom's perspective or just dodgy ethics in others' opinion?

Is only one element of a piece sacrosanct and privledged or should all elements be protected equally?

[Richard Kaufman]

Brad, there is no protection precisely because those questions are almost impossible to answer in a legal sense.

[David Alexander]

The Al Baker Slate can be presented both as telepathy and as a prediction. Same method, two different presentations of mental "phenomena."

Billet switches, double writing, a variety of different methods can be used to produce demonstrations of different phenomena.

[T Baxter]

James' "51 Faces North" does not produce the same effect as suggested by Paul Curry. Stewart's method changes the handling, the routining, and the resulting effect.

As we don't know Stewart's method with any certainty, comments about his "handling, the routining and the resulting effect" are only presumptions. All we can reasonably say is that, according to Stewart's own description of the "conditions" under which his effect is performed, 51 Faces North seems to follow the general confines of the problem as laid out by Curry.

- T. Baxter

[David Alexander]

Heres a nice site on copyright from the US Government Copyright Office. http://www.copyright.gov/help/faq/faq-protect.html

Perhaps of most interest to magicians is the answer to the question:

How do I protect my idea?

Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work.
*****************************

If we understand that sleights and the choreography of a sleight or series of sleights is considered a system or method of doing something then copyright does not apply and will not protect a magic trick. It will protect a specific description of how the effect is accomplished, not the underlying principles and ideas.

[Joe Pecore]

An old BBC article, "Can you copyright a magic trick?" http://news.bbc.co.uk/2/hi/uk_news/magazine/7722521.stm

[Jonathan Townsend]

The question, phrased in plain English is not whether one can appeal to copyright or patent law to protect one's tricks but whether our tiny subset of society will protect the work of artists from unauthorized imitation and subsequent sale and publication of means to permit further such acts.

[Richard Hatch]

As we don't know Stewart's method with any certainty...

I thought the Stewart James method was published in an early issue of PENUMBRA. Is there some controversy as to whether that actually was his method?

[Tom Stone]

Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work.
*****************************

If we understand that sleights and the choreography of a sleight or series of sleights is considered a system or method of doing something then copyright does not apply and will not protect a magic trick.

Our word "method" does not translate into the legal word "method".

Or, if you continue to read: Methods, principles, concepts etc do not fall under copyright protection, since patent protection deal with those things.

But if you go with a brand new sleight-of-hand routine to the patent office - they will not accept it for protection, since it isn't a "method", "principle" etc according to their definitions. Therefore, it must fall under copyright.

All artistic creations are eligible for some kind of I.P protection - except those that are explicitly stated as exempt. The whole problem is more linguistic than legal - a matter of finding the right words. And our own jargon is insufficient.

The whole copyright system will crumble if the idea is that some fields of artistic expressions are, unofficially and undocumented, not eligible for copyright, while some artistic expressions mysteriously are - also without any official definitions or documents.

There are conjuring segments in the movie "The Prestige". Are those segments thereby in Public Domain? The special effects in other parts of the film are also a kind of deception, a trick on the eyes, a trick - are those in Public Domain?
Some flat paintings look 3D - a kind of optical illusion. Illusion = trick = public domain?

If not - where can we find the legal documentation that defines the difference between one kind of trickery and another? I guess that it resides next to the document that explicitly states that creations within conjuring are exempt from copyright.

[Tom Stone]

An old BBC article, "Can you copyright a magic trick?" http://news.bbc.co.uk/2/hi/uk_news/magazine/7722521.stm

That article is shallow and filled with errors. And the main part deals with the question of how to keep something secret - which is a topic totally unrelated to copyright.

Also, the British copyright system has their own bag of weirdness, specific to them alone. For example, the moral rights are not automatic in England, but has to be asserted. That is, if you write a book (or publish some other kind of work), you must write "All rights reserved" or "Moral rights asserted" somewhere - otherwise, you can not protest if your work is attributed to someone else, etc.

[Tom Stone]

BUT what about the converse. It is possible to use an identical method to produce several different effects/phenomena.

For example, having an audience member select a card from a one way deck and revealing that card could be done as telepathy, clairvoyance, psychic influence, hypnosis, estimation/gambling skills etc

If someone lifted another's exact method but reframed it into a different 'effect' would that consititute copyright infringement in tom's perspective or just dodgy ethics in others' opinion?

I'm not sure. We all "know" when a rip-off has been made, right? Likewise, we all "know" when there has been some artistic progress. And, internally, we all can express this to each other. The tricky thing is to find the proper words to express the same to an outsider - without using our internal jargon.

Another thing to keep in mind is that a theoretical copyright infringement does not have to be an actual infringement, unless the creator decide it to be so. Copyright can not suffer from the same dilution as trademarks, so no one is obliged to enforce ones copyright.
That is, if I share and publish an item in Genii, then I'd be flattered by work that is derived from it - even if the changes are miniscule and theoretically a clear copyright transgression. Even more flattered, if the derived piece becomes something I myself never would have been able to create. All these discussions have little to do with the normal progress in our field. This is more about how to handle blatant rip-offs or The Masked Magician.

The practical question is; why would you need to exactly duplicate someone else's method, but reframe the effect? Or exactly duplicate someone's effect, but go through the hassle of changing the method when it doesn't improve anything?

No matter which, it is clear that it is some kind of derivative work - which means that the original creator has some kind of rights to it. So, to cover all the bases, it would be prudent to contact the original creator and check. Today, via internet, you can reach most anyone within a few days. If you feel uneasy about doing that - than maybe something isn't as proper as it should be.

[Mark Collier]

The question, phrased in plain English is not whether one can appeal to copyright or patent law to protect one's tricks but whether our tiny subset of society will protect the work of artists from unauthorized imitation and subsequent sale and publication of means to permit further such acts.

Leave it to JT to put it in plain English for us.

[David Alexander]

Tom,

When you quoted what I posted you neglected to show that it came, as I described, from the Copyright Office of the U.S. Government. Thats their statement, not mine. So, you are now arguing not with me but with the Copyright Office and one of their official and definitive statements on what can be protected by copyright and what cannot.

So now you want to use Humpty Dumpty Logic in the use of the word method and take the rather odd turn that if something is not patentable then it must, by your logic, be copyrightable.

The word method is well known, easily defined and understood. You claim that the US Government through its Copyright Office uses it differently than you do, yet you do not explain the difference and why it matters.

The idea that copyright will crumble is amusing to me because Ive been saying for years that copyright protection belongs mostly to corporations who have the money to pursue and enforce their rights. Most of the large magic publishers have had their entire lists digitized and given away for free on torrent sites without them able to do a thing because of the massive cost involved.

You might read Fatal Subtraction which will give you an idea of what it takes to enforce IP rights: http://www.amazon.com/Fatal-Subtraction ... 0787104949

[T Baxter]

Dick:

Read my book, THE OPEN PREDICTION PROJECT for my thoughts on the Penumbra revelation.

A matter for a different thread, perhaps.

T. Baxter

[Tom Stone]

When you quoted what I posted you neglected to show that it came, as I described, from the Copyright Office of the U.S. Government. Thats their statement, not mine. So, you are now arguing not with me but with the Copyright Office and one of their official and definitive statements on what can be protected by copyright and what cannot.

Yes, those things you listed as not protectable through copyright, are the same that are listed as eligible for patent protection. And in the latter, the words are more clearly defined.

"Method" means industrial or scientific method of operation. A human sequence of movements in a dramatic presentation do not fall within that definition.

Most of the large magic publishers have had their entire lists digitized and given away for free on torrent sites without them able to do a thing because of the massive cost involved.

When the pirating exceeds 10 copies and/or a value over $2500, it moves from civil law and becomes a criminal felony. Don't know if that changes anything related to costs though.

[David Alexander]

Tom,

Since you are keen on thus subject I suggest you write directly to the US Copyright Office and explain to them what you want to do. Once you have clearly and unambiguously laid out what you want to protect and how you want to protect it they can give you a definitive answer. Why you continue this conversation here when obviously none of the answers satisfy you is a mystery to me. You should take your quest directly to the US Government and ask them.

If you don't like the answer then you could bring some sort of suit or otherwise try and influence a change in the law. Perhaps the place to start is Sweden, having your government change the parameters of copyright so they are more to your liking and move forward from there.

About criminal activity in pirating - I've reported here at least twice about my efforts a few years ago to get the Feds involved. They aren't interested. What you describe - $2500 - is such a small amount as to be invisible to them. The Feds are interested in BIG cases with millions of dollars in lost revenue such as the pirating of movies or the counterfeiting of software and brand name merchandise. Even with the latter the industries involved have their own private investigators that do most of the legwork and bring in the Feds for the arrest.

On the spectrum of money lost through pirating, magic is infinitesimally small and of no interest to the authorities.

[Tom Stone]

Perhaps the place to start is Sweden, having your government change the parameters of copyright so they are more to your liking and move forward from there.

The main parameters here were changed about 100 years ago, and there's been a bunch of additions and modifications since then to strengthen the artist's rights to his work.
My work has already the same kind of copyright as within any other artistic field - which simply can't be contested. And since US became a part of the Berne Treaty in 1989, my copyright is valid in US as well.

On the spectrum of money lost through pirating, magic is infinitesimally small and of no interest to the authorities.

Well, it should not cost anything to report such infringements, and once the authorities decides to act against a pirate, they usually want to stack up as many charges as possible, both big and small.

[Bill Mullins]

Are the rules different for magic?

Yes.

Why?

Beats me. But as far as I know (and my research only extends as far as any interested layperson can go -- I have no access to Westlaw or Lexis/Nexis or Loislaw or any of the other sophisticated legal databases), no magician has ever gotten a judgement they can collect on with respect to copyright violations involving one magician using the tricks of another.

If such a case exists, I'd love to know the details.

[mrgoat]

[s][/s]

When the pirating exceeds 10 copies and/or a value over $2500, it moves from civil law and becomes a criminal felony. Don't know if that changes anything related to costs though.

Yes, massive increase. Which is why it cost the RIAA millions and millions to win about 58 bucks. And why they have now stopped suing people that allegedly download copyrighted content.

[mrgoat]

Well, it should not cost anything to report such infringements, and once the authorities decides to act against a pirate, they usually want to stack up as many charges as possible, both big and small.

How do you suggest one gathers evidence to snitch on people you suspect of infringing copyright Mr Stone?

As a side note, imagine if other businesses sued their potential customers.

As another side note, how many cases against copyright infringement have gone to court and been successfully tried? And how has that reduced copyright infringement?

[Jonathan Townsend]

Ya know, if folks actually did a little work to define/refine their performing characters and relate to their audiences we'd have very little interest in imitating each other and could spend our efforts on getting things that are worth performing working. Such would also shift the focus of our literature toward solid "how to" and away from material which is character/personality specific.

While one performer may imitate another, they do so at risk of offering insult and diminishing the craft in which they work. Also, to be very blunt about it, if we tolerate such imitation - what basis do we then have to complain about the base copying of written or manufactured works - the artifacts of the art we did not protect from the start - as these imitations are so sincerely flattering as to be almost if not perfectly exact?

So what's new and useful?

[Dustin Stinett]

Ewww...JT, you said the 'w' word: "Work." It seems to me that a lot of magicians simply don't like to w-wo-work.

[Tom Stone]

How do you suggest one gathers evidence to snitch on people you suspect of infringing copyright Mr Stone?

Snitch? To act if one's work is being ripped off is best described with a derogative term?

As a side note, imagine if other businesses sued their potential customers.

Huh?

[mrgoat]

How do you suggest one gathers evidence to snitch on people you suspect of infringing copyright Mr Stone?

Snitch? To act if one's work is being ripped off is best described with a derogative term?

Well, yes. I look at it badly. It is, at best, pointless and at worst infringing innocent people's privacy, blackmail and scaremongering. Several ambulance chasing lawyers "representing" gay adult content producers send out letters to owners of IP addresses that *may* have downloaded copyrighted files. People settle because they are too embarrassed.

It sickens me. It is nonsense for many reasons. Open wifi. Spoofed IPs. Naughty grandchildren visiting for the weekend. Etc. And there seems to be no actual evidence that the file that has allegedly been downloaded actually *is* the file it claims to be.

So yes, I use a derogatory term. What was your point?

As a side note, imagine if other businesses sued their potential customers.

Huh?

Not sure what part of that you don't understand?

My point is that people that download your content are - for whatever reason - interested in the content you produce. You should be thankful for this. You should not try and sue those people. Cory Doctorow has a great thing about obscurity being worse than piracy.

[Tom Stone]

Well, yes. I look at it badly. It is, at best, pointless and at worst infringing innocent people's privacy, blackmail and scaremongering. Several ambulance chasing lawyers "representing" gay adult content producers send out letters to owners of IP addresses that *may* have downloaded copyrighted files. People settle because they are too embarrassed.

It sickens me. It is nonsense for many reasons.

So yes, I use a derogatory term. What was your point?

For some reason, I suspect that you are not talking about copyright on magic tricks in general, and that your disgust is more aimed at the magic publishing houses' wish to not have their books scanned and distributed. Or am I mistaken?

As a side note, imagine if other businesses sued their potential customers.

Huh?

Not sure what part of that you don't understand?

My point is that people that download your content are - for whatever reason - interested in the content you produce. You should be thankful for this. You should not try and sue those people. Cory Doctorow has a great thing about obscurity being worse than piracy.

I don't know who Cory Doctorow is, so obviously, he didn't pirate enough to become a household name.
And your suggestion that I should let lazy and anonymous people dictate the nature and format of my work and be thankful for it... What!? I'd rather be lost in obscurity.

Someone put the contents of a David Stone DVD on YouTube last year. I alerted David, he contacted YouTube and the content was removed. Maybe that makes me a snitch, and maybe that makes David despicable in your eyes.

Two months ago, someone taped a show I did and put it on YouTube. Some of my unpublished work that I very much want to have exclusive for a while longer. I guess I must be a horrible person, because I instantly asked YouTube to remove the infringement of my work, and within an hour it was gone.

Some of my ebooks was put on Rapidshare and linked to from a warez blog last December. So in the comment section, I asked kindly the owner to remove it, and he removed the post. Then I asked Rapidshare to remove the files. Within 36 hours it all was gone. Then, after some thought, I also removed all ebooks from my site.

I have not found it to be pointless or nonsense. Neither have I "blackmailed" anyone, nor (intentionally) scared anyone. If people want "content", then let them create it themselves, just as I do.

[Jonathan Townsend]

I don't know who Cory Doctorow is, so obviously, he didn't pirate enough to become a household name.

He might enjoy this thread.

[Richard Kaufman]

Cory Doctorow is a writer. He may have put some of his work on the internet or free--can't exactly remember.

All the examples that Tom has cited of things which he or others have been able to have removed are simple examples of infringement of copyright. They have nothing to do with the ownership of magic tricks, and are protected only because the tricks were "contained" in visual or written material that was copyrighted.

[Tom Stone]

All the examples that Tom has cited of things which he or others have been able to have removed are simple examples of infringement of copyright. They have nothing to do with the ownership of magic tricks, and are protected only because the tricks were "contained" in visual or written material that was copyrighted.

Actually, the video clip that was shot at one of my performances do overlap the things discussed here. I did not shoot that video, and it is usually the one who owns the video clip that is considered to be the copyright holder. So the first reply from YouTube was that I wasn't authorized to ask for a removal.
But after explaining in my second email that I was the copyright holder of the performance material (i.e. the magic tricks), it worked out just fine.

[David Alexander]

This happened to me a few years ago with a clip of one of my shows put on YouTube. My argument to YouTube was that the performance was not public and I did not authorize the taping and dissemination of the video. When they heard not authorized and "not public" the video was off YouTube in a few hours. There was no need to discuss copyright in this instance.

[Pete McCabe]

Doesn't "not authorized" mean "not authorized by the copyright holder?" In other words, aren't you already discussing copyright when you say "not authorized?"

[Dave V]

I haven't followed this entire thread, but Pete's conclusion doesn't seem quite right. Hypothetically, an "unauthorized biography" could mean that someone could write my life's story and publish it without my permission. In my eyes that would be "not authorized" although I never wrote my own biography. I have no copyright claim on their work, but I do feel that my own life is my own business and I'd rather not have someone make money by sticking their nose in my life.

[Bob Cunningham]

Doesn't "not authorized" mean "not authorized by the copyright holder?" In other words, aren't you already discussing copyright when you say "not authorized?"

Facts (information) can not be protected by copyright - only the expression of facts (information). Courts have left us with a lot of ambiguity in the area of copyright - but this is not one of those areas. The facts of your life can not be protected with copyright.

To bring things back to the discussion of this thread, the secrets of magic can not be protected with copyright.

For example, you may be able to use copyright to punish someone for performing a magic trick you created (although I do not think this is necessarily how US courts would view this issues.) However, there is no legal theory that would allow you to use copyright to punish someone for writing an explanation of your trick - or even your whole act.

[Bob Farmer]

"...there is no legal theory that would allow you to use copyright to punish someone for writing an explanation of your trick - or even your whole act."

But there is always

1. Trademark law (using someone's name without their permission) -- since you would have to advertise the performer's name.

2. Unfair competition.

3. Unfair and deceptive trade practices.

4. Unreasonable restraint of trade.

[mrgoat]

Some of my ebooks was put on Rapidshare Then, after some thought, I also removed all ebooks from my site.

Mr Stone,

As someone that generates money from ebooks, I would have thought learning from how experts such as Mr Doctorow work this emerging market would be a good idea. (http://en.wikipedia.org/wiki/Cory_Doctorow). He gives away everything he does under Creative Commons. His first novel (out in 2003) is now in its (I think) 13th reprinting. Yes. Imagine! You can download this book for FREE, yet it keeps getting reprinted. How does *that* work?

Finding some of your books on rapidshare doesn't not represent a lost sale. But it does give you an indication that people are enjoying your work.

My suggestion is rather than trying to sue your fans, you work out a way to persuade them to buy your books.

But you keep throwing up straw men if it makes you feel better.

[Bob Cunningham]

None of those theories

"...there is no legal theory that would allow you to use copyright to punish someone for writing an explanation of your trick - or even your whole act."

But there is always

1. Trademark law (using someone's name without their permission) -- since you would have to advertise the performer's name.

2. Unfair competition.

3. Unfair and deceptive trade practices.

4. Unreasonable restraint of trade.

I did not say there were no legal theories that you could use to punish someone you view as having wronged you - I said, "there is no legal theory that would allow you to USE COPYRIGHT to punish someone for writing an explanation of your trick - or even your whole act." - emphasis added for ... emphasis ;)

None of the theories you mention have anything to do with copyright.

[Jonathan Townsend]

Folks, as long as you insist on having a right to copy each other's works and to have the works you publish that describe works protected by copyright ... you are asking folks to see you as the sort who wants to have their cake and eat it too. Can you imagine a lawyer seeking copyright protection for a book he wrote that describes the tricks he saw performed at other magician's shows? Works they spent many years inventing and crafting and did not give consent for any such public discussion much less explanation. Can you imagine self respecting magicians lauding this person?

At even one level removed there is much humor to be found in the matter, as so many who proffer works don't write well (in the Strunk and White sense), and those who do write wind up talking about "knacks" or "act of will" rather than teaching the items described.

Please don't go selling copies of other folks works. And if you want this art to get out of it's current fashion of sequined disgrace - kindly don't copy the works of others.

Richard, you (and most here) might enjoy "Down and out in the Magic Kingdom" - the author seems to have great respect for the Haunted House ride and other such experiences.