How to protect a visual act?

[Jacky Kahan]

Hello,

I was wondering if you have some comments regarding how to protect a visual act... ?
I know about music, but how about an act?
What do you do to avoid people copying an act? Is this possible or just a dream?

thanks!

Jacky

[Thomas Van Aken]

Dear Jacky,
A simple suggestion: Don't let anybody see it.
Hope this help.
Best regards
Thomas

[Jacky Kahan]

Dear Brussels card expert aka Thomas vanA,

Why didn't I think of that?
You're so smart!

Thanks for your help !

Jack

[Pete McCabe]

Write up the act as a play and copyright/register it as such. This is the approach Teller did with Shadows, a purely visual effect, as did Harry Houdini with the Water Torture Cell.

I'm pretty sure you can contact Samuel French Inc. to find out more about the process.

[Bill Mullins]

Here is an interesting BLOG POST regarding the application of copyright law to nontraditional areas.

[Bizzaro]

If you have a strong character that the act ONLY fits you and your persona and the material is represntative of who you are it is less likely to be ganked by unscrupulous SOB's.

This is not definite. The japanese sure did a job on Rudy Coby one time. Saw the footage. Litigation was at hand.

[Jacky Kahan]

Pete, Bill and Bizzaro...
Thanks for the replies!

now another question, how about sleights or techniques? can you avoid or forbid using it? I've seen some products that were sold and was mentioned that tv rights were reserved...

thanks...

jacky

[Bill Mullins]

Originally posted by Jacky Kahan:
now another question, how about sleights or techniques? can you avoid or forbid using it? I've seen some products that were sold and was mentioned that tv rights were reserved...

The only way this could be enforced is if, when you bought the item in question, you had a contract which both parties agreed to in which it was stated that TV rights were reserved. Otherwise, it is simply a request from the seller, that may be honored or not, by the buyer, based on his own good conscience and sense of ethics.

[Guest]

Consider it choreography or pantomime.

See HERE

[Bizzaro]

If you have original, or what you feel is original, ideas and moves first research by asking around. Then if you haven;t been shot down by someone from the 1780's beating you to the punch, make a manuscript and do a limited relase with a date on it or make an online vid of it and make sure your name is firmly attached to it.

Making yourself known synonimous with a move is always a good step. On the other hand, only magicians care about this stuff. The people who pay you could care less. Now go.. go and make magic look good. (It's hard work lemme tell yah.)

[Guest]

Originally posted by Jacky Kahan:
Hello,

I was wondering if you have some comments regarding how to protect a visual act... ?
I know about music, but how about an act?
What do you do to avoid people copying an act? Is this possible or just a dream?

thanks!

Jacky

Seriously, one option is to not show it to other magicians, and I know guys who never perform their best stuff for the guys, only laymen. However, that has big drawbacks, including the fact that you create no buzz in the magic community that agents can hear, and that if you send a video to an agent, they may share it with other magi.

On the other extreme is to perform your act in public so much and with such high visibility that when someone tries to rip you off, everybody knows who he's stealing it from. So people can steal it, but you'll be remembered as the original.

At the Magic Castle, where I perform, the booking agent won't book some acts that seem to duplicate older acts with original effects.

For example, when I told him I was going to perform Knife through the Coat and pull "something very large" out of the spectator's coat, he interrupted me and said, "Oh no, [another magician] does that." He was referring to a guy who pulls silverware, a water pitcher, and a chicken out of a spectator's jacket.

I wasn't even thinking along those lines or anhything close to it, but that's how protective some bookers and magicians can get about a guy with an original idea.

[Jacky Kahan]

First of all , thanks for all the replies!

David Groves :
Seriously, one option is to not show it to other magicians, and I know guys who never perform their best stuff for the guys, only laymen. However, that has big drawbacks, including the fact that you create no buzz in the magic community that agents can hear, and that if you send a video to an agent, they may share it with other magi.

That's exactly the problem ! We have some acts that are really original (we think, and are still researching to be sure)The problem is that we would like to avoid artists copying an idea with or without permission...

Does any one had a real experience in protecting an act? with or without moves...

Thanks for the help!

cheers !
JAcky

[Alain Roy]

Jacky--

If you are lucky, among the readers of your post you will find a lawyer experienced in protecting visual arts. I suspect most of the people reading your posts will be magicians who are not also lawyers.

I suspect that if you want to properly protect your act, you will have a good long chat with a lawyer experienced with these issues. That lawyer will be the best person to give you advice, since you are asking for legal advice.

It will be expensive. But realize that no matter what, it will be expensive. Imagine for a moment that I steal your act. How do you stop me? By taking me to court, and that's expensive.

I suspect that there are a lot of tricky issues involved in getting proper protection. For instance, imagine one of your tricks involves producing a live rabbit. I steal your trick line for line, but I produce a live mink instead. Have I copied you, in a legal sense? I have no idea, but I suspect that it's rather tricky.

If you are serious about protecting your act, you should talk to a lawyer.

If you want to protect the mechanism by which your magic effects work, you could consider patents. I believe those are expensive to make, and to defend. Learn more about patents at the patent office (http://www.uspto.gov/ for the US patent office), or www.nolo.com (for US law).

If you want to learn more about what copyright can and can't do for you, and you live in the US, try the Copyright office (http://www.copyright.gov/) and www.nolo.com.

Again, if you are serious about protecting your act, you should talk to a lawyer.

-alain

[Guest]

[QUOTE]Originally posted by Bizzaro:
The japanese sure did a job on Rudy Coby one time.

Bizzaro....what does this mean? The Japanese? do you mean one individual or an entire race/country?

[Brian Marks]

Here's an idea. Make yourself the centerpiece of the act. The only thing truly original about anyone's act is themselves. How many effects are there really? Producing, disappearing, transportation, flight, destruction, resurrection etc.. We all try to do some variations of these effects.

[Jonathan Townsend]

how to protect an image?

What if the the artwork and images were put into print in a program. could that be used to provide protection in terms of images and likenesses?

[Guest]

Jacky,
I am a patent lawyer. Actual acts may be copyrightable or protected by trademark or tradedress. It's not easy, and may not give you to protection you want.
Alain is certainly right. If you want real legal advice, you need to talk with a lawyer. Call your county bar association and see if there are any entertainment or ip attorneys on their referral list. Depending on where you are, you may get hooked up with a solo attorney or one of the big firms. I'd tend to avoid big firms unless you have deep pockets (deep enough to support the partners and keep a really nice, flashy office). If you can't find anyone local, drop me a line. My contact info can be found on my website. I also have a few postings in my Magic Law category that every magician should look at.

Jonathan,
Images and artwork can be protected by copyright, patents, or trademarks. I can't tell exactly what you're asking from your post. Contact me via email if you need specific advice.

Steve

[Guest]

I thought I had added a sig file, but it looks like I didn't.
My website is:
http://odonnell-law.net

Steve

[Jacky Kahan]

Hello everybody

Just to thank you all for the info you've posted!

All the very best


Jacky

[Jonathan Townsend]

Originally posted by Steve O'Donnell:
... Images and artwork can be protected by copyright, patents, or trademarks. I can't tell exactly what you're asking from your post. Contact me via email if you need specific advice.

How's this work as a strategy;

There is a disclaimer/notice on most comic books about characters, indicia and characters being owned by the publisher... so ... Create a show program featuring artwork depicting the characters and costumes and props and situations you wish to protect. Like a comic strip. And file said program for copyright.

Would this step take the process in the right direction?

[Guest]

[/qb][/QUOTE]How's this work as a strategy;

There is a disclaimer/notice on most comic books about characters, indicia and characters being owned by the publisher... so ... Create a show program featuring artwork depicting the characters and costumes and props and situations you wish to protect. Like a comic strip. And file said program for copyright.

Would this step take the process in the right direction? [/QB][/QUOTE]

Well...it is a step. the program you mentioned would most likely get copyright protection, however it's less clear if you could claim copyright protection to the props/costumes/characters/situations as you propose. If Shakespeare had a vaild copyright for Romeo and Juliet he couldn't prevent Westside Story. Did you read the user-friendly copyright post on my website? If you haven't, read it. If you have read it and still have questions...contact me.

Steve

www.odonnell-law.net

[Jacky Kahan]

Hi all,

All this is very interesting, I was just wondering.... we are talking here about everything around the magic... what about the magic itself? How about moves / sleights? IF an artist created a "new" move, can he avoid someone else to use it? If not, why not? For me it seems common sense to be able to give 'rights' to a creator... but there is no organisation that knows how to protect this.... to my knowledge...

It would be nice to have an organisation that manages these problems, but where to begin?
I was thinking (in big lines), that we could start by making two groups: "public domain" & "new stuff", like in music, there is public domain music where you don't have to pay rights to use it... and then you have all the registered ones...then those we split into categories...

just some ideas... that Id like to develop...with a little help of my friends...

Imagine a database that registers all the moves with it's creators... why not have copyrights on moves? aswell as on script, scenery and decoration?

Anyway, it's good to dream...

Jacky

[Jonathan Townsend]

Originally posted by Jacky Kahan:
... what about the magic itself? How about moves / sleights? IF an artist created a "new" move, can he avoid someone else to use it?

David Roth once commented that if one magician sees something they like in another magician's act, they will take it. And about the only way to keep material exclusive is to make it exclusive by difficulty. That seems to work for sleight of hand and difficult to manufacture prop based material.

Magicians by and large have little respect for intellectual property. Fortunately there are some with enough self respect that they develop and perform their own material.

Since the issue is one of virtue... we may as well just cite the ancient observation that it is impossible to teach virtue.

[Brian Marks]

In stand up comedy, its a rule of thumb that your material must be original. Obviously not everyone keeps this rule. Unless you are a celebrity stand up comic, there is nothing to be done. The only thing you can do about it is to keep writing.

I second David Roth's assertion. Make it difficult for other people to do, and others won't copy.

[Brian Marks]

To protect a move, publish it.
To protect an act, don't do it for magicians.

[Guest]

Publishing won't protect a move, it will protect the actual publication though. If I made copies of The Jinx and sold them, that would infringe a copyright; if I made copies of individual tricks or moves from The Jinx (assuming the copyright hasn't expired) and sold them, that'd be infringement; if I took tricks I learned from The Jinx and rewrote them and sold that manuscript it's a little less clear if that's infringement or not---depends on the totality of the facts. For arguement, let's say that the double lift was first done last month by Someone and they publish it, if I read the manuscript and decide to tell everyone I know about this killer move, I'm not infringing a copyright. Sure, I'm stealing intellectual property, but it's not the type of intellectual property that is covered by copyright. There is a possibility of patenting a move, but it's probably a pretty remote possibility.

Steve
www.odonnell-law.net

Originally posted by Brian Marks:
To protect a move, publish it.
To protect an act, don't do it for magicians.

[Guest]

Hello Jacky

I currently have a patent attorney working on a project for me. This project is only tangentially related to magic. But, I also inquired about the possibilities of protecting magic, specifically sleights and close-up routines. I was told that since 1998 it became possible to patent certain intellectual properties that were difficult or impossible before, such as sleights and close-up routines.

As proof, my attorney sent me a patent abstract of a recent chess move that was actually patented. It is a new game move option and not to be mistaken with a strategy move. Out of curiosity, my attorney did a very minor search for anything that may have been patented as a magic sleight or close-up routine. None were found but this was not a thorough search. The point is that with close-up magic in mind no one may have tried this yet. So this may be new ground to break.

What I was told was this. Methods and Processes ARE patentable. The method must still meet the non-obviousness standards, however, in order to be protected and all other requirements of patentability still have to be met (utility, enablement, etc.).

It may be very possible to patent a sleight but then is it really practical for your purpose. Consider the cost. The instructions must be written and made public within the patent archives so cannot be kept a secret. Also, there are some untested difficulties such as holding up a patent when it is challenged. You must have the money to fight in court. Experts from the magic field must be brought in to speak on your behalf. If I was in the TV business then I would seriously consider this option.

As for publishing, anything that is published becomes available to the public, hence, no longer secret. More importantly, there is usually little that anyone can do legally to prevent unwanted parties from using the material in any way they may please, such as the masked magicians on TV. Publishing has done a lot of good but there are some problems with it.

There are trade secret laws but with magic it is difficult to uphold when the material that is being protected is constantly being performed to allow others to back engineer the method. Then, how does one prove that they stole it?

Well, I hope this helps. Talk to later.

Sincerely, Armando

[David Alexander]

It is the Great Conundrum: How to protect an original magical creation while trying to get recognition from the amateurs who would happily steal it.

First of all, you have to ask yourself, to what lengths are you willing to go and how much money are you willing to spend to protect your creationpresuming that you have original material as opposed to something that is primarily derivative? How derivative can be a point on which a successful defense can be mounted, but thats for the lawyers to argue at a high hourly rates.

There are several approaches to protection: 1) make the methodology difficult or expensive; 2) try and protect it legally; or 3) dont willing and knowingly perform for magicians. I have chosen the first and last approaches, believing that the legal route is fraught with expense and frustration.

On #1 - While Cardini was copied innumerable times, Frakson was not because his presentation was idiosyncratic and technique unknown. There are many other examples. Marvyn Roys Mr. Electric act was never copied because it was far too expensive and there really was room for only one act of that type. Everyone in variety show business knew Marvs act, so stealing it would not automatically result in work.

I do the Balls and Net, have for 40+ years and never seen anyone else do the trick. Nearly impossible to learn from a book, you must, in my view, be taught. Even the method taught by Johnny Thompson in his video (not the one I use), hasnt resulted in a flood of people doing the trick. The essential move was only correctly described once, in an obscure book published over 30 years ago.

One of the cornerstones of my stage act, something I've done for over 20 years, has been seen by three magicians...and those three were people who were pros who had their own stuff and weren't about the steal my routine. It cost me nothing in government and lawyers fees to protect my routine by simply not performing it around amateur magicians, that and the fact that the prop I use costs $4,000, which is another reason the routine stays mine.

Re: #2: While you can, probably, successfully obtain legal protection, you still must be willing to enforce your rights. How far are you willing to go to do that? You must first learn about the illegal appropriation and then you must enforce it. That means litigation if a Cease and Desist letter from a lawyer has no effect. Litigation is expensive.and Heaven help you if more than one person steals your stuff or theyre across the country.

Presuming you are willing to go all the way and take the offender to trial - and you win - are you willing to, say, foreclose on his home to satisfy the judgment you have against him? You could easily spend tens of thousands of dollars to get to that pointand for what?

Re: #3: The people who advise not showing your commercial material to magicians pass on wisdom.

You can spend enormous amounts of time being mildly paranoid, or just never deliberately performing your original material for amateur magicians. Since adopting approaches #1 and #3, I am relatively secure that no one has stolen my material - routines and bits of business.

If you deliberately perform at conventions, looking for recognition instead of commercial success, you are unnecessarily calling attention to yourself and, essentially, asking to be robbed.

[Jacky Kahan]

Hi all!
Thanks so much for all the info!!! this is great...

First of all, you have to ask yourself, to what lengths are you willing to go and how much money are you willing to spend to protect your creation

I don't know about you, but I realy think it is not normal that we can not protect an act, idea or move in a simple way. (= cheap)

In the music business, even if you are an amateur you can protect your music, arrangement or lyrics.
because there are organisations protecting their industry.

Why can't we magicians make an organisation that protect the art? I don't think it's difficult, I think it's just a lot of work, but in our information age with the technology we have, we could quite quickly set-up a nice database of all the moves, scripts, plots and other ideas...
The problem is where to begin?
Lists of moves are available...
Would publishers help us start by giving permission to scan tables of contents /indexes as a good starting point?
How about a website that collects all this info?
We could do like in music... everyhting that's older than 70 years.. public domain?
and so on...

just some ideas... don't shout on me :)

all the best,

jacky

[Guest]

Hello Jacky

If you are seriously looking for a way to catalog all the magic secrets out there in order to legally protect them then you will achieve what no one else has ever achieved. It seems like an improbable and impossible task. But ok, let's dream on and suppose you have the cooperation from magicians all over the world, a lot of money, and the assitance of great legal minds, what then?

[Brian Marks]

I am not talking about copyright laws. There is no way to "protect" a move. Publishing a move allows you to point to the move as yours.

[Jacky Kahan]

Hi Armando!

But ok, let's dream on and suppose you have the cooperation from magicians all over the world, a lot of money, and the assitance of great legal minds, what then?

Well, if we have a catalog it's a start. a good start.We have to start somewhere. Once this catalog exists we can use it as a base to work something out.

I'm just thinking aloud: :o

We could work like in the music business : different members: Creators, story tellers, inventors etc...

We could have different levels of "copyright".
I respect magicians that don't want to share...
no problem, their creation would be catalogued as "none performable".(= ex. very very expensive)
Other magicians would like others to use their creation so it would be "performable"

Everytime some one uses it on tv/gig... he gets copyrights for the creation/invention.. etc...

well again, just ideas.. i know it's not perfect.. but as said before we have to start somewhere...

thanks for sharing ideas!!!

jacky

[Guest]

The main difference between magic and music is in exactly what is trying to be protected. I'd like there to be some form of intellectual property protection for magic, but I can't see how it would work from a legal standpoint. Take for instance the DMCA and how it's been perverted to do things that weren't intended (sorry to get legal, google "dmca sharpie" and "dmca lexmark" for background). Music is protected by copyright, but there's no way a musician could claim copyright to a chord or scale. Magic acts might be protected by copyright, but still, even then, the underlying moves and methods are just not the type of thing protected by copyright.
What you're proposing is an honor system. That would be fine, if everyone was honorable. Of course, if they were, there would be no need for your proposed database. On the other hand, I have a few tricks that I think are totally original, if I ever write a manuscript I'd like to know if I've independently come up with something that's already been done so I could properly credit them while noting that I've come up with what is probably a different working.

Steve
www.odonnell-law.net

Originally posted by Jacky Kahan:


We could work like in the music business : different members: Creators, story tellers, inventors etc...

We could have different levels of "copyright".
I respect magicians that don't want to share...
no problem, their creation would be catalogued as "none performable".(= ex. very very expensive)
Other magicians would like others to use their creation so it would be "performable"

Everytime some one uses it on tv/gig... he gets copyrights for the creation/invention.. etc...

well again, just ideas.. i know it's not perfect.. but as said before we have to start somewhere...

thanks for sharing ideas!!!

jacky [/QB]

[Bill Mullins]

Originally posted by Jacky Kahan:


I don't know about you, but I realy think it is not normal that we can not protect an act, idea or move in a simple way. (= cheap)

In the music business, even if you are an amateur you can protect your music, arrangement or lyrics.
because there are organisations protecting their industry.

I'm not sure what you mean by cheap. ASCAP and BMI are not cheap, but their fixed costs are amortized across thousands of publishers and musicians, millions of performances, and billions of dollars of sales in a year.

Magic, as an "industry", doesn't have that big a train to attach itself to, so the costs of using it would be much more.

I think the consensus is that no, you can't protect your act from being performed by someone else (short of never performing it in front of anyone).

[David Alexander]

Jacky,

You must address the enforcement issue. Even if you had a database that clearly gave the history and "inventor" of every move...every trick (an impossible task, I would say) and presuming these creators had clearly defined rights, there is still the problem of enforcement of rights.

As an example...you claim to have something completely original. Maybe, depending on your experience and knowledge of magic history, and maybe not. I don't know and maybe you don't either. Someone from California flys to Belgium, watches your act a dozen times, videos it, flys home, builds your act, changing it a bit in the process...maybe 25% different from yours. How "new" is it, how different or similar to your creation is it, and are you willing to spend thousands of dollars to have a court tell you?

What are you willing to do to protect yourself, presuming you even hear about it?

The answer is: you can't do a thing other than bring a VERY expensive lawsuit, across international borders, and if you haven't done all the legal steps in Belgium - registration, copyright, whatever is available to you in your own country - you probably have no case to begin with.

Worse, if someone in India appropriated you act, you have nothing because India is not a signatory to the Berne Convention.

There are hundreds of examples of magic dealers "knocking off" other dealer's products or ideas. No one can do a thing about it because "magic" is such a small industry and the enforcement of any law that may protect an inventor so expensive and the possibility of collecting damages so small that no one bothers.

Robert Harbin did the Zig Zag Girl on television once and the copies started flowing. Even if he had protection of one kind or another, if he chose to enforce whatever protection he might have had, he would have spent the remainder of his life and every bit of his money in court all over the world.

Best advice - confine your performing to real paying audiences of lay people who make your creativity worthwhile. If you crave recognition by amateur magicians and insist on working for them at conventions and club meetings, expect to have your creations "appropriated."

[Jacky Kahan]

Hello,

Just wanted to THANK you all for sharing!!!

Jacky

[Christopher Starr]

Jacky:

My 2 here...just do the act. If it's as "protectable" as you fear/hope that it might be, then the magic community will recognize it as "yours" if and when you begin presenting it to the world at large. Think of all of the tricks/illusions/ that you cannot do because they are so closely associated with some other act. I guess that I really wouldn't worry about it getting stolen, because if its any good at all, somebody somewhere will imitate it. Like the Nike ad says, Just do it!

-CS ;)

[Guest]

Originally posted by Steve O'Donnell:
I'd like there to be some form of intellectual property protection for magic, but I can't see how it would work from a legal standpoint.

The IEEE-USA Intellectual Property Committee (of which I am chair) has been very active in this exact area -- because, there have been many devices simply "knocked off" by being quickly copied especially in technology areas where the life cycle of some products is shorter than the time to get a patent to issue.

For several years we've been working on a sui generis form of protection specifically covering "knock offs". It involves a simple registration; a limitted time protection; and a patent will superceed this protection.

While this has been well received on the Hill, it lacks a vocal constituency that has lots of experiences of business problems by having their "devices" ripped off. While Hollywood has been very visible pusing for extending copyright term and going after pirates, there's not been a lot of people complaining how their non-patented inventions have been ripped off left and right.

I've felt that if we could get the magic community behind this, it would be another group that has had their physical things (not performances, but things like gafs or illusions) ripped off. I could easily imagine the impact to Congress of a hearing with Teller, Copperfield, Burton, etc. all talking about how their inventions have been ripped off, and how such an anti-knock-off bill could help them.

If you want to know more, please contact me...

Glenn

[Jacky Kahan]

Hi Glenn,

Thanks for the Update !
Although i live in Europe, Yes, i'm intrested to know more...
Please don't hesitate to send me more information!

all the best

Jacky

[Guest]

I find this an interesting topic. I'm an amateur performer, the material in my act is all widely published material. I have a couple routines which are slightly original only in their presentation or assemblage of effects. All of the effects I use I've purchased.
I find David Alexander's posts to express a contempt for amateur's, whom he seems to feel only attend conventions to steal material. It's amusing to me because the example he gives of an effect he's trying to protect is one he read in a book and has seen another method demonstrated on a video. Yes, it may be obscure, and ridiculously expensive, but it's not original to him.
And if someone in India appropriated my act (allowing for the sake of argument that I had an act worth stealing), would it matter to me if India was not a potential market for me?
I guess I can see this mattering to the guys building stuff for the television market, but do these guys do the convention circuits?