The Genii Forum

This, of course, leads to an interesting question.
Will these restrictions stop anyone from buying the book?
Having not read the review, or the book, I don't have an opinion either way, but I was wondering what others think.

Gord.

The correct word is "remunerate" ...

Well, in my mind, the correct word was "renumerate". Just goes to show you learn something every day.

Almost all the routines are linked to texts and scripts. I'm still looking for a country where you can steal an artist's work (example of Michael Chrichton's books) and make a play or a movie without paying dues.
I prosecuted once a guy in France who stole some of my material, and I won... enough money to be happy.
On the other side, if you use some of my methods/techniques, with your own texts and artifacts, I don't consider being copied.
You may get inspiration from my work, and the books are written for that reason, but stealing material is something different.
It's not only very impolite and undelicate but can be sued. :genii:

Well this may be off point, but i did want to say how much I enjoy the book! It is very good! :) :)

"My all time favorite statement of rights is found inside Michael Weber's "Life Savers.""

John,

Weber's statement was printed in giant type on the outside back cover of my copy (and I didn't pay $200 for it!) And anyway, look where it got him, how many ripoff Bottle Cap in Bottle routines were put out and sold?

Lucca Pacholi wrote
and I didn't pay $200 for it!

Neither did I, because I purchased my copy from Dick Hatch at H&R Magic Books. (Just another in my endless list of reasons I shamelessly shove people in their direction anytime anyone even suggests they need a magic book.)

John

I suspect that Mr Chelman is referring to copyright protection of his scripts, something that is normally covered in law, rather than the performance of a routine with your own original script.

I do see a potential legal problem in that there is a precedent in the magic industry that the purchase of a book or prop is understood to come with performance rights.

If any deviation from this is not made clear BEFORE purchase, it could prove difficult to convince a judge. Also that it is mis-spelled in the book might invalidate the point.

Nonetheless, common courtsey alone should dictate contacting Mr Chelman before using his routines in paid performances.

I have just noticed that since my last visit one post has disappeared... Strange...

I agree with Quentin that asking the creator of a specific routine his permission to use it (even if it's published) in performance is a sign of courtesy and often appreciated.

Regards,

D

OK. I'll play along.

I'm going to be doing a corporate gig in the near future where I'll be paid $1800. During my performance I'll be doing one routine from Chelman's book.

How much is permission or a one-time license going to cost me for that performance?

Dear David,

I don't think it's going to cost you anything. It is my understanding that all Christian wants, is to be asked, but then again I may be wrong...

Regards,

D

Traditionally, magic routines that have been published for the trade have automatically granted permission for the work to be performed. If a scripted presentation was included, the performer was usually told to adapt the presentation to his personality, but no restrictions were imposed by the creator. You bought a book or a DVD and you could copy the presentation verbatim.

There have been a number of books over the years that simply explained the effect and its workings, leaving the precise presentation to be developed by each performer. Apparently, Christian Chelman chose not to do that.

So, he requires buyers of his book to ask permission for the use of his material in paid performances. Asking permission gives him the power to say no, but nothing has been said about what happens if permission is denied and the performance takes place anyway.

In my view (and while I'm not a lawyer I know a little bit about contracts), if I bought the book directly from Chelman and he explained to me in advance under what circumstances I was buying the book and I signed a contract to that effect, then I would be bound by the terms of that contract. Simple.

However, if I buy the book from a third party, a bookseller (who probably bought the book from a distributor) or someone who bought the book directly from Chelman, they are not in any way acting as Chelmans agent. I sign no contract with them acknowledging my agreement with Chelmans conditions of purchase. I'm bound by nothing. Christian Chelman may want people to ask permission, and they may if they want, but since there is no contract, the exercise has no meaning.

Then there is the idea of enforcement. How is that possible for non-television performances on the other side of the world?

Finally, the example of copyrighted material in books being used for other purposes has been brought up. Fine, lets go to that.

When I owned a small publishing company I licensed material from several major New York publishers. In every contract the publishers warranted that they had the right to license the material and in giving me that right they guaranteed that they would protect the value of that right by enforcing the exclusivity granted to me for the contracted time period.

Should I buy into this nonsense and pay a fee to Chelman for performance rights, in granting a license Chelman acknowledges that he is granting me something of value. For it to be of value to me it must be limited in some manner. That means for my purchase of rights to have and maintain the value that Chelman charged me he must act against all who violate the rights he has granted to me and others. That means lawsuits against everyone who performs his material without permission, otherwise a fee paid is money for nothing.

Mr. Alexander,

The third party reseller cannot transfer anything to you that the original buyer did not originally own and then transfer to him.

If you were not made sufficiently aware of this state of affairs,(you sincerely thought you were buying a used $40 book for $20 and were expecting to receive full performance rights for your next television show)you might have a claim to get your $20 bucks back. That's it.

Intelectual property rights are designed to be "bundles of rights" that can be split apart and granted, or not granted subject to agreements.

So, it is actually possible that I may be able to buy an original painting and not have the right to put it on "Public" display, or make a print of it, or sell postcards of it - even though I own the one and only painting.

We are quickly moving into an age where EVERYONE is their own broadcaster with YouTube and other similar medium. I promise you that the top creators in magic actively protect their product. If you choose to knowingly violate the agreement with Chelman or any other creator who places open limitations on the use of their work, I suspect that Chelman will only actively pursue you if your performance is very succesful (commercially) or sub-standard.

I think the overlooked issue here is the assertion that an agreement has been made. That, somehow, by purchasing the book the buyer has entered into a contract that is only discovered upon reading the book.

This is not just an issue for magic, it applies to many other media. See The Small Print Project for more info.

<http://smallprint.netzoo.net/reag/>

Richard Kaufman wrote:

One of the few legal precedents in this area was a case by Think-a-Drink Hoffman where he sued someone for copying his act. (This was discussed by attorney Warren Kaps in, I think, MUM.) I believe the judge ruled that, in essence, if you don't want anyone copying your material, then you shouldn't perform it in public.

On the other hand - this was before the choreography copyright law: Copyright of Choreographic Works
As the definitions are written vague to allow even the oddest performance art, it should be quite easy to find grounds to include covert magic choreography as well.

David Alexander wrote:

So, he requires buyers of his book to ask permission for the use of his material in paid performances.

I find it odd that this is considered a bad thing.

First of all, if I understood it correctly, this is mainly routines that Christian has developed for his own use, in his own performances. The Catch-22 is that his work can't be protected if it isn't documented. Since 90% of all those with an interest in bizarre magic is amateurs, Christian's own performances will not be affected by sharing it with them.

The rest? I guess that there might be a total of 20 people worldwide that would have an interest and opportunity to perform these pieces on TV or in paid performances. Surely, with pieces this specific, isn't it a valid request to keep Christian informed? Not just only for his sake. If he is informed that you plan to perform one of his pieces on TV, he can warn you if another performer in the area has planned to perform the same piece on another channel the day before you.

I only see good things with this request.

The Catch-22 is that his work can't be protected if it isn't documented

It can be protected by him without us having to pay for it by registering its content. If he only wrote this book to protect his IP I find it in bad taste to make buyers pay for that.

If we want to protect our presentations perhaps we should be publishing our work differently. I am all for this. In the theatre world we cannot mount a professional production without permission.

Maybe we can get our work published through a publisher who cares about this issue?

http://www.samuelfrench.com/store/royal ... 1eef2ac9ba

It can be protected by him without us having to pay for it by registering its content.

Yes of course.
So, you'd prefer that the book wasn't published at all, and that you were unable to access a single item of it?

Is it not in more bad taste to put demands and claims to material you've had no hand in creating?

I have been reading these posts with interest, but I have a question and a point to make.
First, is Christian actually asking for payment for permission or is he just asking that we ask for permission?

Second, would it not be better in these situations if the contract (If that is the correct word) is spelled out and printed somewhere where there is no question about it. Perhaps on the back cover?

Ok, that's two questions, Sorry.

Gord

Tom,

If it means I have to pay so that he can protect them, and can only use them under some undisclosed conditions, then yes, I would prefer it not to be published.

How much of a change to the published material would be enough (if I perform it in a different language in my own style, but basically doing the same routine - is that enough?) for the creator? Who would decide if the change is enough?

Lucca Pacholi wrote:
Mr. Alexander,

The third party reseller cannot transfer anything to you that the original buyer did not originally own and then transfer to him.

If you were not made sufficiently aware of this state of affairs,(you sincerely thought you were buying a used $40 book for $20 and were expecting to receive full performance rights for your next television show)you might have a claim to get your $20 bucks back. That's it.

Intelectual property rights are designed to be "bundles of rights" that can be split apart and granted, or not granted subject to agreements.

So, it is actually possible that I may be able to buy an original painting and not have the right to put it on "Public" display, or make a print of it, or sell postcards of it - even though I own the one and only painting.

We are quickly moving into an age where EVERYONE is their own broadcaster with YouTube and other similar medium. I promise you that the top creators in magic actively protect their product. If you choose to knowingly violate the agreement with Chelman or any other creator who places open limitations on the use of their work, I suspect that Chelman will only actively pursue you if your performance is very succesful (commercially) or sub-standard.
____________________________________________________


Lucca

In my working life I have created, licensed, bought and sold both intellectual property and IP rights. I well understand that those rights are granted through negotiated contracts with the owners of those IP rights not through the purchase of a book.

A contract is made up of several parts, all of which must be in place for a contract to exist. They are: offer and acceptance, consideration, and an intention to create legal relations by a meeting of the minds. None of these exist in the simple purchase of a book from a third or fourth party who is not acting as Chelmans agent with signed documentation between the parties indicating that everyone agrees to the terms of the contract. Signed contacts indicate a meeting of the minds of those involved and that all agree to the terms. Without all of those elements being present no one has agreed to anything and there is no contract.

Your logic fails when you erroneously claim that there is an agreement present with Chelman (or anyone for that matter) by the purchase of his bookor the receipt of his book as a gift or the purchase of his book through any other entity regardless of what the book might say and Chelman might claim.

You also claim that creators of magic will protect their rights. Really!? Where and how often has that happened? You cite YouTube, but how many posters on YouTube been sued by any creator of magic?

Finally, if you think that Christian Chelman or any creator of magic is going to pursue those who perform their creations in a sub-standard manner (whatever that means) then those creators of magic are going to be extremely busy for a very long time.

Tom Stone wrote:
On the other hand - this was before the choreography copyright law: Copyright of Choreographic Works
As the definitions are written vague to allow even the oddest performance art, it should be quite easy to find grounds to include covert magic choreography as well.
___________________________________

Unfortunately, a quick glance at the cited article indicates that since the law's inception - and the date of the article - there has been one case brought, it was appealed and sent back to the lower court where the matter was settled out of court.

Thus, there are no precedents set in the protection of choreography. Regardless, it would seem to be a real stretch to include a magic presentation under choreographic protection.

I really am confused by peoples reactions to what Christian is attempting to do. He is simply trying to protect his creations. If Willie Nelson records an album of his work his people go through the proper channels to copyright the songs. If you want to record those songs you pay Willie.

If David Mamet writes a play and you want to perform it FOR MONEY then you must pay for it.

Of course there are many people performing music and weddings and parties and not paying the proper royalties. Just like there are magicians out there performing other's routines.

We bitch and moan about magic not being taken seriously... that magic is an art... that magic is theater. Yet most people who call themselves magicians don't want to follow the models that the theatre world has put into place.

Interesting.

Somebody claimed there is no precedent for this in magic. Well magic is a theatrical presentation. I bet if you look into other theatrical ventures you will find a precedent. I am just saying...

Good grief. I thought I was clear. Apparently not.

I'm not saying that Chelman has no rights. What I've said repeatedly is that the mere purchase of a book does not automatically create a contract between the buyer of the book and Christian Chelman.

Does he have "performance rights" beyond copyright? Maybe...and maybe not. It depends on a lot of factors - the laws of the country where the supposed infraction occurred, precedents in the law.

Claiming a right exists does not make it so. This is why we have lawyers and courts, to settle questions like this. The most important question is: how much time and money Chelman is willing to spend to enforce rights he believes are his, and what, if any, damanges can he show for loss of those rights should a court agree that they exist?

Then theres the question that if he doesnt enforce the rights he thinks are his, does he lose them?

P. T., my understanding (which is not a deep one!) is that you would have to pay Mamet a royalty to perform one of his plays evern if you did not charge money for tickets. That seems to be the gist of the Samuel French link above, which quite explicitly states that such royalties are due "whether or not admission is charged." A search on their site pulls up several dozen Mamet plays and if you order multiple copies of the same play, they will add the royalty fee in advance, unless you tell them the copies are for "perusal only".

David Alexander wrote:

Does he have "performance rights" beyond copyright?

Of course he has. I see no reason to assume that magic creators alone would be without the same rights as creators within any other art.
I mean, come on - a painter splashes some paint on a canvas by mistake - and it is protected for a lifetime. But if a magician put a year into the development of a performance piece, then he has no rights to his work at all?

It's just a matter of linguistics - finding the proper words, to be able to get the rights to be recognized legally - on a theoretical level, of course.

On the practical side - it doesn't matter at all what the law says. No-one cares about that anyway. In the end, it all depends on which part can affort the longest time in court, and whose lawyer are loudest. Legal matters don't matter on a practical level - never has.

A stretch to refer to choreography? Don't think so .
Step-right, 2, 3, 4, step-left, 6, 7, 8..
Elmsley, 2, 3, 4, double lift 7, 8..

Both: A realised artistic idea communicated through human motion. Same thing. Identical. Claim it long enough, and loud enough - and it will become the truth. That's all it takes.

Tom Stone wrote:
Of course he has. I see no reason to assume that magic creators alone would be without the same rights as creators within any other art.
I mean, come on - a painter splashes some paint on a canvas by mistake - and it is protected for a lifetime. But if a magician put a year into the development of a performance piece, then he has no rights to his work at all?

It's just a matter of linguistics - finding the proper words, to be able to get the rights to be recognized legally - on a theoretical level, of course.

On the practical side - it doesn't matter at all what the law says. No-one cares about that anyway. In the end, it all depends on which part can affort the longest time in court, and whose lawyer are loudest. Legal matters don't matter on a practical level - never has.

A stretch to refer to choreography? Don't think so .
Step-right, 2, 3, 4, step-left, 6, 7, 8..
Elmsley, 2, 3, 4, double lift 7, 8..

Both: A realised artistic idea communicated through human motion. Same thing. Identical. Claim it long enough, and loud enough - and it will become the truth. That's all it takes.
___________________________________________

Well, the post above is filled with Tom Stone's opinion. It should be noted that an opinion is far different than a law and a legal fact. Tom's opinion has no force in law, which is what Im trying to talk about. My opinion has no force in law, either, but Im not making a claim that I have rights or contracts with people who buy my book.

If Christian Chelman, or any creator of magic effects/routines, wants to put forth a claim for rights, they should do so. They should enumerate those claims and by whatever theory of law or force of law they have as support for those rights. If those rights are to be licensed in a limited manner, which is what gives them value, then there should be some description of how Chelman will protect the value of the right granted. So far, no one has addressed that.

A painter creates something never seen before and is protected by copyright for his lifetime plus 75 years. An author writes a story and it is protected for the same amount of time. Stories or paintings may be similar in nature but ideas cannot be protected, only their expression and in limited ways.

While written expression is protected by copyright, does the publishing of the material to its niche market obviate copyright protections that may or may not have applied to the work when it comes to performance? Ive heard the vaguely-stated claims. Id like to see the statutes or the precedents that support the claims.

If the performance piece is derivative, how derivative is it? Does the creator use the principles and props of others to his end? Does this allow him to claim originality or is what hes worked up just old wine in new bottles?

The Elmsley Count was given to the world by Alex Elmsley, who, as the originator, was the only person who could protect it by whatever means were available to him at the time. However, I do not know if the protection of choreography will protect human movement when the result is realized through a secondary instrumentality beyond the human body. In the case of the Elmsley Count, said instrumentality being playing cards. Without the instrumentality, the movements realize nothing.

Toms example of Elmsley could be used for playing a musical instrument or painting a picture since the same human movements would produce the same result, but each would require an instrumentality for the realization of the art to happen.

Claim it long enough, and loud enough - and it will become the truth. That's all it takes.

Actually, no, not when you run into someone who wont be bullied or [censored].

While it may be nice, and courteous, and to some, moral, to ask and/or pay Christian Chelman (or anyone for that matter) for permission to perform routines from his book, the central unanswered question remains: Why should I have to pay when no contract or force of law exists and the tradition of magic publishing in 100 years of books, magazines, videos, and DVDs is against it?

Why should I have to pay when no contract or force of law exists and the tradition of magic publishing in 100 years of books, magazines, videos, and DVDs is against it?

Good Grief! Indeed.

The idea that the actions necessary to perform a magic trick are "choreography" and can be protected by copyright law may be suspect. Many of the movements to execute a trick are purely functional, and doing them is not an expression of the creativity that copyright law protects.

There is no requirement of creativity for copyright protection -- it is simply that the expression of the idea be original, but original means, "not expressed this way previously."

So, if I explain the Elmsley Count in one way and you explain it in another way, we both get copyright protection for the explanation, though not for the Count.

Threats of lawsuits can go both ways, as Chuck Leach found when he tried to bleed David Blaine over a similar sell-something-then-claim-rights issue. Geez. Hauntiques is a disappointment on so many levels, but mostly for lowering my opinion of someone I once held in esteem.

David Alexander wrote:

Claim it long enough, and loud enough - and it will become the truth. That's all it takes.

Actually, no, not when you run into someone who wont be bullied or [censored].

Heh.. You suggest that it is wrong of an creator to decide how his work should be handled - and seem to say that his wishes are unimportant since he can't enforce them anyway - and you put yourself in the role of the bullied one? ;-)

Was the Copyright laws already set in stone since before the rise of mankind?
No - it is just a simple document that are changed and amended now and then, attempting to reflect the real world. Ink on paper, nothing more.

It came into being because some people claimed long enough and loud enough that it was needed.
And it has changed several times since it first was written.
Do you think that the addition of Choreographic Works in 78 was done out of pure human interest, and selfless devotion by the lawmakers? Not very likely.. I'm pretty sure that it was added because some people claimed that it was needed long enough and loud enough.

It doesn't matter how it is now, because the current state is wrong. In all fields it is taken for granted that a creator has the right to decide what to do with his creations - except within magic. And magic is neither included nor expressly excluded in any of the laws.. meaning that the laws are flawed, incomplete and will be adjusted eventually. Why should we treat a law that doesn't even admit our existence like it was complete?
Until then.. The choreography law is written loose, to allow experimental choreographies to be protected. Like, someone twiddling his thumbs for 5 minutes, and end with a burp.. Well, if that can be considered to be a choreography, I think it just as easily can be claimed that a magic performance piece is a choreography - just by naming it so.

And just like many times before - say it long enough and loud enough, and it will become the truth.

Tom,

You may read into my posts anything you want...erect any strawman argument you care to create, but when you post scans of checks that you've mailed to creators of routines that you've used in your performances, I'll think better of your sincerity.

Bob Farmer wrote:

So, if I explain the Elmsley Count in one way and you explain it in another way, we both get copyright protection for the explanation, though not for the Count.

Well - is the Elmsley Count litterature?

For the discussion, let's assume that Elmsley Count had not been given to be shared freely.

The protection of a work can't be circumvented by transfering it from one media to another. A movie is photographic film, but filming the screen with a digital camera is rarely approved, even though it is a whole other technology. Can't transcribe the movie either, really.

The nature of Elmsley Count are choreographic. It's purpose is to be performed. Meaning that both descriptions, no matter the words used, are transgressions - if what they describe are the Elmsley Count.

I think Christian is trying to protect his presentations. Odd that this has degenerated into a discussion about moves...says a lot about us magicians don't it? :)

Although I feel that you have the right to protect your moves as well.

I should be able to protect the presentation. The SCRIPT, the words I use to communicate to my audience.

Mamet is protected. The Beatles are protected albeit Michael Jackson owns the rights to their music, but you get my point.

There are traditional chord progressions that musicians have found to be attractive to the human ear. I can write a song using a I IV V chord progression and NOT have to ask somebody's permission for it. But if I steal the words and melody to a song that has been recorded and copywritten I run into trouble.

I think of sleights in the same way I think of chords. Somebody had to create or discover the A Minor Chord. I did not. But I use it. I think of moves in the same way. But the script that I create and the presentation I dress those moves up in...those are MY melody and lyrics.

Just as a playwright may use the words in the english language (which he did most likely NOT invent) and arrange them into a play and just as a songwriter will combined notes to create a song, I use moves and effect to create a piece of magic. And just as those people have the right to copyright and get a fee paid to them if somebody else wants to use their material, so should I.

David Alexander wrote:

Tom,
You may read into my posts anything you want...erect any strawman argument you care to create, but when you post scans of checks that you've mailed to creators of routines that you've used in your performances, I'll think better of your sincerity.

Sorry, since I'm not an english speaking person, I had to check the term "Strawman", as I was unfamiliar with it. Wikipedia says:
"set up a straw-man argument" is to create a position that is easy to refute, then attribute that position to the opponent.
Have I created and misattributed an easily refuted opinion to you? If so, it is by accident and not by design - perhaps I've misunderstood your words. Please quote the strawman argument you refer to.

I'm curious - you were informed that there were no additional pricetag:

I don't think it's going to cost you anything. It is my understanding that all Christian wants, is to be asked,

Still, in following posts, you are mentioning an non-existant fee which you argue against. Is this an example of a strawman argument?

I'm pretty sure that my repertoire during the last 16 years have not contained pieces used in ways contrary to their creators' wishes. I own the books the pieces are described in, and since no extra requirements are mentioned in them, I consider that the ownership also grants performance rights. I've followed Michael Weber's wishes in LifeSavers. The only thing I'm unsure about is Gary Oulette's "Human Galvanometer" from an issue of Genii. I've lost that issue during a move, but I still perform it - and I'm not sure that is correct.

Before 16 years ago, I'm not sure.. I know that I once used a Max Maven idea improperly, but I've talked with Max, and he's okey with it. Then, there's probably a lot from when I was a teenager, but I can unfortunately not track those items.

So, no, I have no checks that I can post, since it never has been required.. which according to your posting means that I'm insincere.. Is this also an example of a strawman argument, or is that called something else?

I'm supposed to respond to your questions but you do not respond to mine.

We'll go back to basics: where does Chelman establish a contract by the purchase of his book?

What benefit does the purchaser gain by asking permission or paying a fee for a license? What happens if Chelman says no?

I haven't see anyone address these questions as yet.

David Alexander wrote:

We'll go back to basics: where does Chelman establish a contract by the purchase of his book?

I don't know if "contract" is the correct word. But the copyright page is where you usually find out what you are allowed to do with the contents. I guess you find it there, just like with Michael Weber's LifeSavers

What benefit does the purchaser gain by asking permission

Goodwill and the permission to use the material.

What happens if Chelman says no?

Then you haven't got the permission to use the material, except in informal performances. Seems pretty straightforward to me...

Tom Stone writes:
I don't know if "contract" is the correct word. But the copyright page is where you usually find out what you are allowed to do with the contents. I guess you find it there, just like with Michael Weber's LifeSavers

Sorry, Tom. While the rights statement for Life Savers is printed inside, it is also printed in plain sight on the back cover.

I have to say, I've traded notes with Christian over a lot of years. Not to say I know him well, but this issue really ... I don't know, feels unsettling to me.

Any writer is within his rights to ask or demand anything he likes. But, readers (and buyers -- now and in the future) are also free to act and react accordingly. This issue is not likely to be forgotten when the next book is published.

I just don't get why these routines would be published to the magic community and, at the same time, have restrictions put on its contents (restrictions that are not revealed until after the buyer puts his money down) that go completely against virtually every other published work for our community since forever.

It seems to me to be unprecedented in the world of magic that Christian would classify as "stealing" should a magician perform in a paid performance a routine from a book the magician purchased legitimately.

This is all just unfortunate.

John

Yes, Tom, "contract" is the right word and one is NOT established by the simple purchase of the book. I did not agree to his "terms" and the book was sold to me anyway by a third party, or, perhaps it was given to me as a gift. Do you think I'm still bound by the terms of the book?

I don't need Chelman's permission to perform the material I bought in his book any more than I need Mike Weber's to perform the material in his book. I don't care what the book states. No contract means no contract, no matter what you would like to happen.

The argument is nonsense unless Weber and Chelman have sued in US courts to block performances of their published material without "permission."

Have any instances of that?

Absent case law or legal precedent, the entire argument is nonsense.

And to those who think this is a good way to control your material, think again. The only way to control original material is to keep magicians from seeing it. Putting it in a book and selling it on the open market is not the way to protect your material.

That seems pretty straightforward to me...