David Ben and Vernon Material?

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Postby Guest » 09/14/06 01:45 PM

I have been researching Vernon material for the last few months.I was wondering about unpublished Vernon material and how it can't be published without the estates say.
I was also wondering how David Ben became the head of the estate? Wasn't he a Ross Bertram student?
Why wasn't one of Vernon's students asked to take care of his estate. There were quite a few students that could have done a great job. David Ben seems to have done a great job but I was curious what Vernon's students sthought of the families decision. Or was it Vernon that made that decision? Any help would be great.
Thank you very much.

Maybe Mr.Ben can chime in here and fill in some blanks.
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Postby Bob Farmer » 09/14/06 03:32 PM

I've appointed David Ben to handle my estate and I'm not even dead yet.

Note that if you remove the "v" and "d" from Mr. Ben's first name, you're left with "Dai" and the letters removed form "DV," Vernon's initials.

I think that should answer all your questions.
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Postby Richard Kaufman » 09/14/06 03:58 PM

The person in charge of the estate is chosen by the estate or the heirs. The choice of David Ben was made by Vernon's sons.

Nothing can be published under Dai Vernon's name, no photos of Vernon can be sold, no tricks of Vernon's can be sold, etc., without the permission of the estate unless some prior agreement is in force.

For example, I was able to publish The Vernon Touch book because Bill Larsen paid Vernon for those columns and Bill owned them. Still I did ask the estate and was told that it was no problem. Better to be safe than sorry.
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Postby Leonard Hevia » 09/14/06 04:06 PM

I wasn't aware that David Ben is the head of the Vernon estate. I had always assumed that Vernon's descendents handled this task. If I give you the benefit of the doubt on this Sphaleros, it's probably because Mr. Ben worked very hard in continuing the legacy of Vernon. He wrote a wonderful biography of Vernon that no living student of the Professor has produced.

I understand from interviews Mr. Ben has recently given in magic periodicals that he is assembling rare and valuable Vernon ephemera toward the goal of opening a museum dedicated to the life of the Professor. If Mr. Ben is indeed head of the Vernon estate, well, he certainly seems worthy of the task.

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Postby Brad Henderson » 09/14/06 04:19 PM

If Vernon taught a trick to me and I wrote it up and published it, giving credit, would that be in violation? What if it were published in a magazine for free as opposed to a commercial release? Just curious what the realities of this type of situation would be.

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Postby Bob Farmer » 09/14/06 04:38 PM

The Vernon estate controls the use of Vernon's name in commerce: in essence, they own the trademark, the merchandising rights and the rights of publicity (exactly the same rights as the Presley estate owns for Elvis).

These are rights completely separate and in addition to any rights of copyright in particular works of Vernon's.

So, if you want to put Vernon's name, picture or likeness on something and sell it, you must have the estate's permission.

If you want to publish a Vernon trick, or your variation, etiquette, if not legalities, would dictate you ask permission.
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Postby Guest » 09/14/06 05:29 PM

If Vernon taught you a trick and you wrote it up in your own words, giving credit, then certainly there is nothing wrong with it. No laws are broken and no ethical or moral violation in my opinion. Actually it would be a great thing to do. This would be completely appropriate and normal. It appears to me that the tone of the posts try to scare people to publish their own words, experiences, recollections and so on. Nobody has the exclusive right or privilege to write about Vernon, as long as they are your own words. Anybody could write his opinion or recollections about him.

Best,
Chris....
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Postby Richard Kaufman » 09/14/06 05:58 PM

Farmer will be able to answer this more clearly than I can, however anything that was Vernon's property when he died (assuming he hadn't already given the rights to someone else) now belongs to his estate. That would include unpublished tricks or anything else.

So, if Vernon explained a trick to you, just because he explained a trick to you doesn't mean that it's now yours--it remains his, or in this case since he's deceased, the property of his estate. Assuming one could be said to "own" (in the legal sense of the word) a trick, then the trick that Vernon showed you remains the property of his estate and you have no business publishing it. This is because of the economic value of the trick--Vernon's estate may be planning to publish a book of Vernon's unpublished tricks (including the one you know) and you are hurting them economically by publishing it first.
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Postby NCMarsh » 09/14/06 07:02 PM

There were quite a few students that could have done a great job.
Vernon's students are, of course, exceptionally talented people. I don't know many of them, however, who received their law degree at the London School of Economics. David, from what I understand, was hired out of law school by a major firm with a sterling reputation. So, his legal credentials are very sound and that is, obviously, a huge asset in this role.

Secondly, David has done a tremendous amount of good work raising awareness among the general public of Vernon's legacy. His exhibits, documentary, and now books cogently and effectively argue that Vernon is the "last great undiscovered artist of the 20th Century." This work is, of course, immensely valuable to the Vernon estate on a number of levels.

This is not to give an official reason for the selection of Mr. Ben, I have no idea what the real reasons were and know no one involved. It is only to say that I am not struck by the original poster's surprise; Mr. Ben seems a very natural and excellent choice.

Oh, and he's Canadian...

Best,

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Postby Brad Henderson » 09/14/06 08:19 PM

Nathan,

You have something there on your nose.

;P
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Postby Brad Henderson » 09/14/06 08:19 PM

Originally posted by Richard Kaufman:

So, if Vernon explained a trick to you, just because he explained a trick to you doesn't mean that it's now yours--it remains his, or in this case since he's deceased, the property of his estate. Assuming one could be said to "own" (in the legal sense of the word) a trick, then the trick that Vernon showed you remains the property of his estate and you have no business publishing it.
This is exactly where my question stems from. In all the "ethics/law" threads here and elsewhere, most who seem to know state clearly that one cannot copyright a trick or idea. So, it would seem, that legally (and that is the issue I am interested in) one would be able to publish that trick - based on statements made and approved in other threads - so long as it did not reproduce words/pictures/etc previously published and protected by copyright.

Now I think I am hearing that one could not legally write up and publish a previously unreleased trick of Vernon's because the estate "owns" it - an estate that up until now may not have even known of its existence. Can someone explain, legally, the difference in these situations?

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Postby Guest » 09/15/06 02:03 AM

Brad,

it is very true that a magic trick in a legal sense does not belong to anybody, unless it was patented, at which point the inventor has 20 years exclusivity for this trick in the countries he patented it.

Most often with magic tricks people own the copyrights to a particular description/drawings/photos/videos a.s.o. because very little is patented or patentable. Legally it would be ok to take pretty much any magic trick, Vernon or not, deseased originator or not, new or old, and redescribe it in your own words. Ethically and morally of course it is a different issue. I would not endorse the mere re-description of recently published original material, for example.

In the case of a trick Vernon actually taught you, and Vernon being dead and unable to clarify if he would be ok if you would redescribe it, I think that you would be perfectly fine to do so. Actually I think you almost have an obligation to do so to preserve the legacy of Vernon. This could be a trick or version he has not described anywhere else. Also, you have the property rights to your own experiences. So if somebody teaches you a trick and does not explicitely ask you to not share it with others or write it up, it is your good right to publish it as you see fit. Nobody else owns the rights to your experiences and you can certainly write about them.

With unpublished material it is a hard case to make either way, unless there is evidence, say a handwritten manuscript by Vernon, or letters or similar. But again, any rights to this would in most cases only be copyrights. This means that if you write about this unpublished material in your own words you are not breaking any laws.

Best,
Chris....
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Postby Bob Farmer » 09/15/06 03:49 AM

Discussions of intellectual property and magic tricks always deteriorate into black and white lists of the "rules" (e.g., you can't copyright a magic trick).

There is no such rule because there is no legal definition of a "magic trick." In my law school lectures, I explain to the students how they can copyright a common mousetrap even though the "rules" all say this is impossible (a mousetrap is a mousetrap unless a sculptor made it and then it's a work of art and subject to copyright).

Here's how it works in the real (legal) world: I've got something -- you want to use it -- I want to get paid. If my economic negotiating position is better than yours (i.e., I can afford a lawyer), I will come up with some sort of legal argument that forms a basis for getting paid. It may be copyright. It may be something else. It may be a state law on civil rights (as in New York).

Lawyers don't consult a list of "rules" and then tell their client there is no solutiion -- they look at the "rules" and come up with a creative and persuasive answer. If they don't, they get fired.

(P.S. My master's degree from L.S.E. predates David's.)
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Postby Matthew Field » 09/15/06 04:26 AM

Originally posted by Bob Farmer:
(P.S. My master's degree from L.S.E. predates David's.)


I got my masters degree from L.S.E. before David
So, Bob, who got their masters degree first, you or David? The world needs to know.

Also -- If you remove the letters BOFARMER from Bob's name and replace them with EDMARLO, guess what? You get JON RACHERBAUMER!

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Postby Brad Henderson » 09/15/06 07:55 AM

Bob,

Thanks for the honest, candid, and practical response.

But in the interest of understanding "the theory" of the law, why would the Vernon estate be able to control the publication of uncopywritten ideas passed on to a student of which they were previously unaware. Would it matter if this was a trick Vernon created for a student? Would then "ownership" have passed to the student?

Why is it on this and other forums people acquiesce that "even though(insert name of evil magic company here) is releasing a DVD or booklet that is a knock off of someone else's trick, since they are presenting the information in a different form that does not replicate the original copywritten form", that action is unethical BUT techniccally legal (a position often clearly - and I believe correctly - stated by RK and others); yet to do so with Vernon material as the "estate owns everything" would some how be "legally" wrong? Did they do something different by way of some other form of protection that trumps this reading of the law? (A lawyers clever mechinations aside).

Just trying to wrap my head around something that does not seem to add up.

I appreciate the time you and everyone has taken so far, and thank you in advance for the time you may choose to take in trying to help me understand.

Brad
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Postby Richard Kaufman » 09/15/06 08:06 AM

Brad, it is not a question of copyright, but of ownership of intellectual property. They are not the same thing.
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Postby Brad Henderson » 09/15/06 08:32 AM

Then does the same IP protection extend to the creators of other tricks that get knocked off by (insert evil magic company here)? Seems most discussions about those situations end with the "its not nice, but legally there is nothing that can be done about it" resignation. But here there clearly seems to be something which legally CAN be done about it. How can other creators maintain and enforce what the Vernon estate seems to be clearly able to do?

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Postby Richard Kaufman » 09/15/06 09:22 AM

The Vernon estate has an attorney on call: David Ben. Most folks don't.

The Vernon estate can afford to protect its rights and vigorously enforces them. Most folks don't.

When you don't enforce your rights, you lose them.
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Postby Guest » 09/15/06 09:23 AM

In the "real" world it is often more economics than "rights."

Two questions: Does the other side have a viable theory supporting their complaint? Does the cost of defending a lawsuit trump the cost of paying off the complaining party?

If the other side has a "decent" (not necessarily valid) case that might result in an expensive judgement and/or could the cost of defending the case (which you might not win) exceed the cost of simply paying for a license/permission/royalty, then decisions are often easy.

Some work on the idea that it is easy (and less expensive) to ask forgiveness than pay for permission.

A famous science fiction writer of my acquaintance was paid $50,000 to keep him from suing a film company for the idea of a film that came from his writings without his permission. Subsequent checks for the same amount were received from "sequels" to that film, totalling $200,000. The production company found that to be cheaper than defending and, probably, losing.
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Postby Richard Kaufman » 09/15/06 11:06 AM

I'm guessing that the writer would be Harlan Ellison and the movie would be The Terminator. I recall that the screenplay pinched the plot of one of his most famous stories and they had to hastily add his name to the credits in the film after it opened.
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Postby NCMarsh » 09/15/06 11:46 AM

My wild guess would be Gene Roddenberry...
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Postby Guest » 09/15/06 12:26 PM

A quick look online gets that answer if you must. But this IP vs Copyright thing in magic is sticky.

I understand the issue is using the name "Dai Vernon" to sell things. That makes good sense.
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Postby Guest » 09/15/06 12:40 PM

Harlan has brought suits and the threat of suits, but I wasn't referencing him or Gene.
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Postby Guest » 10/02/06 01:48 PM

David Ben was selected because none of Dai's students came up with the idea. Without naming names, several people were profiting from the use of the professor's name and intellectual property without permission of the estate. I met David when he was working on "The Spirit of Magic" video. I was impressed with the quality of the tape, and when when I found he had expertise and degrees in intellectual property law -- he was the natural choice. His recently released biography (seven years in the making) is brilliant and as thoroughly researched as any biograhy I have ever read. I only hope I live long enough to read volume two.
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Postby Guest » 10/02/06 04:49 PM

Originally posted by Richard Kaufman:
I'm guessing that the writer would be Harlan Ellison and the movie would be The Terminator. I recall that the screenplay pinched the plot of one of his most famous stories and they had to hastily add his name to the credits in the film after it opened.
Next to my bed I have a collection of Harlan Ellison short stories with introductions by the author. Before one story he says that this particular plot was stolen for a big Hollywood movie starring a certain Austrian bodybuilder. He goes into a bit of detail about his lawsuit and how it was resolved.
I then read the story. For those who have not read the story I will make the comparisons for you.
The only similarity between this story and that certain movie can be summed up this short sentence.
"A Soldier From The Future appears in our time."
That's it. No war. No hunting a robot trying to kill anyone. A soldier from the future appears in our time and is put on display.
If Harlan Ellison really got money for that then I should get some money for my idea of some sort of vague conflict in outer space that I thought up in 1975.

Gord
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Postby Guest » 10/02/06 08:30 PM

I was not referencing Harlan or Gene, but another writer (better than Harlan), now dead and, unfortunately, out of favor with the SF-reading public.

However with regard to Harlan, his Outer Limits script "Soldier" and the film Terminator... after conferring with their lawyers, the people who produced the film had a different opinion than Cord. Since their's was the opinion that mattered, they gave Harlan the credit and the check.
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Postby Guest » 10/02/06 09:07 PM

Originally posted by David Alexander:
I was not referencing Harlan or Gene, but another writer (better than Harlan), now dead and, unfortunately, out of favor with the SF-reading public.

However with regard to Harlan, his Outer Limits script "Soldier" and the film Terminator... after conferring with their lawyers, the people who produced the film had a different opinion than Cord. Since their's was the opinion that mattered, they gave Harlan the credit and the check.
The book and editorial I referred to did not mention The Outer Limits, it just said that this particular story was ripped off and he got money and credit for it. The story (In my opinion) wasn't particularly good anyway.
I should mention, just to be fair, that I did read Harlan Ellison's script for the Star Trek episode "The City on the Edge of Forever" and agree with him that it was way better than the show that aired.
As well Ellison is one of the creators of one of my favorite Sci-Fi shows of my youth. It was called "The Starlost" and it aired on Canadian TV when I was a kid. I have since read, in Ellison's own words, how the producers screwed up his vision.
Of course, if you read anything Ellison writes you'll find out that pretty much everyone (In his opinion) has screwed up his vision or stolen from him.

Gord
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Postby Guest » 10/02/06 10:43 PM

Are the Vernon sons and grandkids benefiting from his legacy? I certainly hope so. He gave so much to magic during is life it is clear his family missed out on a lot of his time. It would be nice that all that effort and work is providing something now.
Steve V <--Vernon fan
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Postby Guest » 10/02/06 11:55 PM

Cord,

As Gene Roddenberry's biographer I am aware of the controversy surrounding Harlan's episode. What Harlan now claims as the "original" did not past muster with Gene. Harlan was given the opportunity to re-write it to conform with show's format. He either wouldn't or couldn't.

Another writer was given the chance and they couldn't pull it off, either.

Gene re-wrote the entire episode over a weekend, bringing it into format. It was this episode that won an award.

As Gene, the creator and Executive Producer used to say, "It isn't Star Trek until I say it's Star Trek."

Even though scripts submitted for writing awards are supposed to be the final shooting script, I had one well-known producer tell me that it was known in the community back then that Harlan occasionally re-wrote submitted scripts so they read better.

Harlan made it a point to spread the rumor that Gene stole Star Trek from Sam Peeples. I did a long recorded interview with Peeples who flatly denied Harlan's nonsense. And, of course, Sam worked with Gene on a number of projects after the first series. Peeples liked and admired Gene and told me so, on the record and with emphasis.
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Postby Guest » 10/03/06 07:49 AM

So does this mean David Ben now represents the Gene Roddenberry estate? ;)
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Postby Glenn Farrington » 10/03/06 10:34 AM

Magicthe final frontier. These are the voyages of the starship Vernon. His life long mission: to explore strange new handlings, to seek out new palms and new center deals, to boldly go where no card man has gone before

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Postby Guest » 10/03/06 10:50 AM

Originally posted by Glenn Farrington:
Magicthe final frontier. These are the voyages of the starship Vernon...
The original series just got a CGI face lift and re-recording of the score.

There are also fan produced episodes on the web.

Sure, why not do something with Vernon's material. With appropriate permissions of course.
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Postby Guest » 10/07/06 01:02 PM

Do any of you remember when Harlan was a wise assed punk and appeared as a regular on the Long John Nebble radio show?
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Postby Guest » 10/11/06 11:38 PM

Little has changed except that Harlan is older and heavier...
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Postby Guest » 10/13/06 08:10 PM

I do have to say that Harlan was a damned good writer. He was a nasty little man but he was one of the best writers of science fiction who ever lived.
Many magicians were similar. Not every idol you guys hold in high esteem was a good person. Not to worry -- we all know that Beethoven was a pain in the ass -- but who cares?
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Postby Matthew Field » 10/14/06 03:44 AM

Originally posted by Vernon's son:
Do any of you remember when Harlan was a wise assed punk and appeared as a regular on the Long John Nebble radio show?
I certainly do. Along with Keigh Deigh, Jim Moran and lots of UFO experts. A classic of 50s and 60s radio, on WOR. Along with Jean Sheppard.

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Postby Syd » 10/15/06 06:24 AM

It is easy to get confused. My hat's off to Mr. Farmer - I use real world examples in my law school lectures as well. The world of Intellectual Property is often confusing. Intellectual property INCLUDES copyrights - it's just that IP is broader and includes other forms of property such as Patents. There are so many issues involved that this discussion board could not hope to address all of them. Just because you "own" intellectual property doesn't mean you have any right to prevent someone else from using/publishing it. It depends on what you have done to protect your property. Most magical IP isn't protected. The ethics often prevail and we have to all support those ethics by - for example - not purchasing rip-offs.

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Postby Harry Lorayne » 10/15/06 02:48 PM

Hey Matthew: You must have been asleep all those nights that I was on with Long John Neble. Best -
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Postby Harry Lorayne » 10/15/06 02:49 PM

Pushed the wrong button and never got to sign off. His name was spelled, NEBEL, I believe. "Those were the good old days!" HARRY LORAYNE.
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Postby Kevin Connolly » 10/15/06 07:02 PM

You can throw in Randall Zwinge too. He seemed to have made a name for himself. ;)
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