Ed Marlo and copyright

Discuss the historical aspects of magic, including memories, or favorite stories.

Postby 000 » 07/21/10 08:59 AM

In the April 75 Genii, Edward Marlo advertises his
THE TEN HAND POKER STACK

and refers to it .....'an original Marlo 1964 Copyrighted premise'

Question; Was there such a copyright?
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Postby Jonathan Townsend » 07/21/10 09:01 AM

Can one copyright a premise?
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Postby Bob Cunningham » 07/21/10 09:28 AM

Excellent question!

Courts seem to have consistently held that you can not copyright facts. You can only copyright how those facts are expressed/communicated.

Here is some interesting commentary on a recent court decision referencing that principle: http://www.techdirt.com/articles/201007 ... 0241.shtml
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Postby Jonathan Townsend » 07/21/10 09:55 AM

Somewhere in that 10 hand poker deal premise is a workable routine where one of those "special people" scans the deck, gives it one shuffle and then deals out ten hands of ascending value - leaving the last two cards which turn out to be jokers. Somehow the two selections left over from a previous routine are on the table where the jokers were set aside earlier. Kind of a "rainman does a cute trick" bit.
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Postby Ted M » 07/21/10 10:17 AM

Copyright law is typically designed to protect the fixed expression or manifestation of an idea rather than the fundamental idea itself. Copyright does not protect ideas, only their expression and in the Anglo-American law tradition the idea-expression divide is a legal concept which explains the appropriate function of copyright laws.

http://en.wikipedia.org/wiki/Copyright# ... ion_divide
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Postby Richard Kaufman » 07/21/10 10:29 AM

Marlo didn't understand copyright law, hence his misrepresentation of facts.
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Postby Philippe Billot » 07/21/10 12:27 PM

If all the administrative or legal work has been done correctly, the copyright for The Ten Hand Poker Stack was dated 1974.
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Postby 000 » 07/21/10 12:43 PM

Question is whether it was in fact copyrighted?
Thanks.
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Postby Bob Cunningham » 07/21/10 12:55 PM

1) The idea/concept/trick can not be copyrighted.

2) All works are copyrighted the moment they are created.

"Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device."

http://www.copyright.gov/help/faq/faq-g ... tml#mywork
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Postby Tom Stone » 07/21/10 01:16 PM

Bob Cunningham wrote:1) The idea/concept/trick can not be copyrighted.


You are in error on the last bit - tricks, as any other realised artistic expression, have the same protection as any other art.
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Postby Jonathan Townsend » 07/21/10 01:18 PM

Tom, that is - by inspection - simply not the case.
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Postby Tom Stone » 07/21/10 01:38 PM

Jonathan Townsend wrote:Tom, that is - by inspection - simply not the case.

Lacking the resources to protect one's copyright properly, does not remove the copyright.
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Postby Richard Kaufman » 07/21/10 01:45 PM

Tom, the United States legal system does not recognize (that I've heard) magic tricks as something that can be legally protected or owned.
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Postby Bill Mullins » 07/21/10 01:46 PM

Tom Stone wrote:
Bob Cunningham wrote:1) The idea/concept/trick can not be copyrighted.


You are in error on the last bit - tricks, as any other realised artistic expression, have the same protection as any other art.


It might be a good idea if that were so, but until a U.S. Judge rules that way in a U.S. Court, that is not true in America.
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Postby Bob Cunningham » 07/21/10 01:48 PM

I think part of this disagreement depends on what we mean by a "trick".

Since, "Ideas, procedures, methods, systems, processes, concepts,
principles, discoveries, or devices" cannot be protected by copyright, I think that means that principles, moves and of a magic trick could not be protected by copyright.

However, the performance (which would include patter, character, music, etc) is protected by copyright.

Of course, I am not an attorney - let alone an attorney who specializes in copyright law - so my understanding could be wrong ;-)
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Postby Bill Mullins » 07/21/10 01:48 PM

Bob Cunningham wrote: 2) All works are copyrighted the moment they are created.

"Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device."

http://www.copyright.gov/help/faq/faq-g ... tml#mywork


Don't ignore the "and fixed in a tangible form". You can invent a trick. You can perform a trick. Nothing about it is copyrighted until you either record a performance, or write down a description, or something similar.
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Postby Jonathan Townsend » 07/21/10 02:48 PM

A magic trick - it's procedure (choreography) and patter (spoken script) is usually a fixed item (rehearsed) by the time it's performed. I suspect any special apparatus involved would fall under its own design law protections.

In my own understanding of the matter, I've pretty much added magic to baseball and Major League Sports as "peculiar American institutions" as regards effective legal protections and exemptions.
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Postby Richard Kaufman » 07/21/10 02:57 PM

Don't add magic to baseball since the courts have not made that decision.
The only thing protected is the EXPRESSION of the idea. So, written text is protected, a video is protected.
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Postby Tom Stone » 07/21/10 03:24 PM

Bill Mullins wrote:It might be a good idea if that were so, but until a U.S. Judge rules that way in a U.S. Court, that is not true in America.

That reasoning is pretty backwards, isn't it?

The areas that are explicitly exempt from copyright are usually listed in each country's IP laws.

So provided that:
A. "Magic tricks" are not explicitly stated as exempt from copyright.
B. You firmly believe that a magic effect can be created by getting an idea, and that the same idea can be expressed by working out a handling for it.
C. You firmly believe that the creations by one creator can be very different from the creations of another creator.

Then the only reasonable stance is that magic tricks DO have the same copyright protection as any other art - until a court says otherwise. And that will never happen, because that would put other artistic fields in danger.
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Postby Richard Kaufman » 07/21/10 03:32 PM

Tom, there may be protection in Sweden (has anyone sued over a trick and won?), but there is none in the United States.
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Postby Tom Stone » 07/21/10 04:01 PM

Richard Kaufman wrote:Tom, there may be protection in Sweden (has anyone sued over a trick and won?), but there is none in the United States.

I think that was true when you started up your publishing business, but a lot of things have changed since then.
Back then (in U.S) you had to register your work to get copyright protection, and the areas in which you could get copyright were pretty limited.

Now, copyright is automatic and encompass much more. It is quite reasonable to assume that all realised artistic endeavors have a valid copyright, unless a court has stated that it is exempt from copyright.

Obviously, it differs from trick to trick. For example, while Roy Walton's "Collectors" probably is eligible for copyright, it can probably be argued that my own handling (titled "The Hoarders") is lacking enough originality for me to claim copyright for the piece.
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Postby Jonathan Townsend » 07/21/10 04:12 PM

Tom, let's not confuse the legal notion of having a right to make copies of a work with the ethical/artistic notion of having a right to copy what you like from what you see of someone else's artwork.
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Postby Bob Cunningham » 07/21/10 04:30 PM

A few years ago Slate had an very informative article on plagiarism.

The author examines some cases where the issues would be much easier for most of us to articulate and comprehend than the issues surrounding a magic trick.

The bottom line is that what may be a clear violation of copyright to us, may not be so clear to a judge ;-)

http://www.slate.com/id/1785
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Postby Bill Mullins » 07/21/10 04:55 PM

Jonathan Townsend wrote:A magic trick - it's procedure (choreography) and patter (spoken script) is usually a fixed item (rehearsed) by the time it's performed.


If you rehearse a trick, you may have "fixed" it, but it is not in tangible form until it is recorded somehow -- script, video or audio recording, etc. And then, only that script or recording is protected. You could make an argument that if someone else performs it after you have made the fixed tangible work then their performance is an infringement, but to my knowledge no court has validated this theory.
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Postby Tom Stone » 07/21/10 04:56 PM

Jonathan Townsend wrote:Tom, let's not confuse the legal notion of having a right to make copies of a work with the ethical/artistic notion of having a right to copy what you like from what you see of someone else's artwork.

No, I meant - if Roy Walton would take offense by my particular handling and decided to sue me for copyright infringement, I would not be able to put up a compelling defense. Fortunately, in this case, I've circumvented that by getting his explicit permission to publish a derivative work (p. 253, Vortex)
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Postby Bill Mullins » 07/21/10 05:00 PM

Tom Stone wrote: Then the only reasonable stance is that magic tricks DO have the same copyright protection as any other art - until a court says otherwise.


Since when did "reasonable" enter into any discussion of U.S. copyright law?
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Postby Tom Stone » 07/21/10 05:04 PM

Bill Mullins wrote:And then, only that script or recording is protected.

You mean - only the graphical notation on sheet music is protected, but not the actual song? Music is graphics?

No, the 'work" has copyright, and so has its documentation.
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Postby Bill Mullins » 07/21/10 05:11 PM

Tom Stone wrote:I think that was true when you started up your publishing business, but a lot of things have changed since then. Back then (in U.S) you had to register your work to get copyright protection,

Richard started publishing in, what, the late 1970s??

Everything published in the US since 1977 is still under copyright regardless of whether or not it was registered. If it was published since 1964, it is under copyright if it had a proper copyright notice, whether or not it was registered. Registration isn't important in obtaining copyright, but it can be important in obtaining damages if you are infringed.

Now, copyright is automatic and encompass much more. It is quite reasonable to assume that all realised artistic endeavors have a valid copyright, unless a court has stated that it is exempt from copyright.

Again, Tom, "reasonable" and "the law" have very little overlap. Further, making important decisions based on what you "assume" the law to be is a good way to lose court cases.

Would you accept advice from a layman on the best way to structure a performance of a magic effect? Then why offer (or accept) lay advice on the law (including from me) -- the field is much more complicated, less subject to common sense, and the stakes are much higher.
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Postby Bill Mullins » 07/21/10 05:22 PM

Assume for the moment that what Tom Stone envisions is true -- that the U.S. legal system takes an expansive view of copyrights as applied to magic tricks.

So what?

Suppose I invent a trick, and then I perform it. I don't publish it, because I want to keep it as "mine", but I can establish my priority with a recording of it at a magic convention. Tom sees it, and starts performing it, and even publishes it as his own (I know that Tom wouldn't do these things, I'm just using him as an example).

What can I do?

The police won't arrest him.

Laypeople won't care and he'll still get bookings.

The magic community might shun him (and it might not -- there are plenty of examples of copyists enjoying stature within our small community).

I could hire a lawyer to sue him for damages, but how does it make sense for me to spend tens of thousands of dollars when my economic losses are much smaller than that? I won't be able to recover as much as it would cost me to win. And then there's a fair chance I could lose the case, and get nothing. I might get counter-sued, and end up spending even more to defend myself from that.

Copyright is not the solution to the problems of plagiarists and copyists within magic.
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Postby Bob Farmer » 07/21/10 05:27 PM

There is no legal principle that says a magic trick cannot be the subject of copyright. There is also no legal principle that says a magic trick can be the subject of copyright.

Copyright works like this: you create "something" -- if that "something" fits into one or more of the classes of works in which copyright can subsist, then if you take the other steps necessary (e.g., rendering the something in a tangible form), your "something" will be copyrighted.

Those classes are enumerated under U.S. law in 102(a):

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

Note that "magic trick" is not listed; however, depending on the trick, it could fit into one or more of these classes by virtue of being also, say, a literary work or an audiovisual work.

When Houdini filmed his water torture escape it allowed him to claim copyright infringement by other performers and stop them because the copyright in the Houdini film was infringed by a live performance in the same way that the play version of a movie would be infringed.

This subject always produces numerous posts, all usually with links to the wording of copyright laws in support of the poster's arguments, but the reality is this: it doesn't really matter what your argument is, or what the law says, or what the policy is or should be, if you don't have the money to fund a lawsuit, and if the money at risk is not substantial, the argument will never be heard.

The best way to protect magic tricks is not a lawsuit -- use what I call creative revenge. When Kenton Knepper and John Mahood ripped off my trick, "Tsunami," created an inferior version and priced it at a ridiculous price, I circulated for free the explanation and a withering review and a vastly superior trick.

The other remedy is to identify those who decide to take what is not theirs and cut them from the herd (as Bob Sheets likes to put it). Shun them.

If you are going to publish variations of somebody else's trick, ask their permission -- and always give them credit.
This may not be a legal requirement, but it sure is a moral one, and at the very least, the proper etiquette.
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Postby Tom Stone » 07/21/10 05:51 PM

Bill Mullins wrote:Suppose I invent a trick, and then I perform it. I don't publish it, because I want to keep it as "mine", but I can establish my priority with a recording of it at a magic convention. Tom sees it, and starts performing it, and even publishes it as his own (I know that Tom wouldn't do these things, I'm just using him as an example).

What can I do?

The police won't arrest him.


Actually, since I'm Swedish, you would have a pretty good chance for justice. I would likely get arrested, or get relevant property siezed. And since this is an area that the Swedish government currently is interested in, it would probably not cost you very much either.

There were an infringement case regarding a circus act here a few months ago, and it involved police raids, arrests and newspaper headlines.
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Postby Bill Mullins » 07/21/10 06:10 PM

Then I commmend the Swedish legal system.

Or maybe I don't -- you going to jail doesn't seem like a just reponse to the scenario I mentioned. To me, the ideal solution would be a court in which you and I could each lay out our positions without enriching lawyers (no offense, Bob Farmer). Sort of a small claims copyright court.
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Postby Tom Stone » 07/21/10 07:03 PM

Bob Farmer wrote:Copyright works like this: you create "something" -- if that "something" fits into one or more of the classes of works in which copyright can subsist, then if you take the other steps necessary (e.g., rendering the something in a tangible form), your "something" will be copyrighted.

Those classes are enumerated under U.S. law in 102(a):

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.


So, assume I've come up with a new trick: I write "Fire" on a piece of paper, and when I put a cup of water on the paper, the water instantly begin to boil.

Now, since this doesn't already exist, it would be logical to call this a "new creation".
If it happens for real - the paper actually emit heat when written on, and the water actually begin to boil - then it is a scientific innovation and is (in most parts of the world) not eligible for copyright, but can be patented.

However, in this case, the paper doesn't emit heat and the water doesn't actually boil... what I present is just fiction. Or in other words, I show the dramatization of an imaginary scenario. Which happens to be the definition of what is called "Dramatic work" in point 3 above.

To accomplish this work of drama, I've created a sequence of structured movements that has to be done in a specific order, or the drama will fail. While doing seemingly natural and innocent movements, I need to obtain something 'extra' from my pocket and add it to the cup. This has to be done after, not before, the viewer has become convinced that the cup is ordinary, or the drama will fail. And I need to hold the 'extra' something in a specific way, or the drama will fail. The piece rely on 'structured human movements', which is a definition of "choreography" - point 4 above.

This "trick" is fiction - dramatic work of a choreographical nature, with no obvious predecessors, in a realised and tangible form. All the requirements for copyright has been met.

What of this can be refuted? Nothing!
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Postby Pete McCabe » 07/22/10 04:09 AM

Tom,

How about if you write fire on the paper and the paper catches fire? I think that's even more direct.
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Postby Tom Stone » 07/22/10 10:01 AM

Pete McCabe wrote:Tom,

How about if you write fire on the paper and the paper catches fire? I think that's even more direct.

That's a good example of a derivative piece which is a work in it's own right - opposed to the 'Trick Brain' method of changing the props (like writing 'heat' on a plank to boil a glass of milk).
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Postby Jonathan Townsend » 07/22/10 10:41 AM

I like it. Gonna put on an ebook an the version where you write the word water on a scrap and drop it into an empty bowl and out pours water. Copyright 2010, JT. ;)

There's some new flashpaper that burns red / blue - all the better for this kind of thing. :D

Does ethics say I should credit Tom Stone for the inspiration?
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Postby Gregory Edmonds » 07/22/10 11:38 AM

I am not an attorney, but have had a copyright placed on a number of my published art works as well as writings.

I have consulted with attorneys who specialize in this kind of work, and, a little over a decade ago, was able to observe a (then) current update of copyright law.

At that time, the expert panel advised that ANY new representation of thought or expression, so long as it's written or printed, is automatically covered (here in the United Sates) under copyright protection.

I've subsequently, with important items, ALSO taken the step of going through the official United States copyright application procedure (which, I believe, is still under $50.00 US), by registering my copyright protected item with the United States Library of Congress.

The latter is not essential, I'm told, but will surely be of benefit should the need apply to prove ones claim to copyright. The aforementioned body of the United States government provides (upon the granting of official copyright status) documentation by return mail, providing the copyright holder with his or her official status as owner of said document, written expression or work of art.

I've only once had to employ this information, and that was when an eBay seller elected to use my long-ago registered copyright symbol from a product I called "MindSets" back in the mid-1990's. Said proof provided proof positive that I, and I alone, own the image in question. eBay, consequently, dropped the individuals advertising, and barred him (under his real name, anyway) from doing business on eBay again; this, after numerous "friendly" correspondences from me to said seller (also thoroughly documented), asking him to "do the right thing," and cease and desist from using the material (in this case, and image),which was beyond question owned by me.

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Postby David Alexander » 07/22/10 11:50 AM

I think there is a difference in the understanding of what an Effect is and what a tangible, copyrightable presentation of the Effect can be.

Copyright law says you cannot protect ideas, only the expression of them. Think of Effect as the idea. Not protectable.

For example: The Four Ace trick. Created years ago now existing in myriad variations. The basic effect remains much the same with minor variations the four Aces still vanish from individual stacks of cards to appear in one stack. Same Effect, more or less, with many ways to accomplish iteach one protectable individuallythe Effect/Idea not protected.

Society benefits because creativity has not been stifledalthough how much Society has benefitted over a plethora of Four Ace tricks is debatable. ;-)
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Postby Bill Mullins » 07/22/10 11:55 AM

Tom Stone wrote: This "trick" is fiction - dramatic work of a choreographical nature, with no obvious predecessors, in a realised and tangible form. All the requirements for copyright has been met.

What of this can be refuted? Nothing!


Sue someone in court for violating your copyright as you've described it) on a trick, and win a judgement and I will agree with you (you don't even have to collect the judgment).

But even if you are right, so what? As Bob Farmer said above, there's not enough money involved in a trick for the legal processes to do any good, because it is so expensive to take advantage of them.
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Postby pduffie » 07/22/10 01:17 PM

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