Goldin Lawsuit

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Postby Bill Mullins » 08/17/05 05:16 PM

In the now-closed Bairefoot thread, Richard Hatch states:
Horace Goldin apparently "successfully" sued several performers whom he argued infringed upon his "sawing a woman in half" patent rights. In a letter to Carter the Great dated 19th Novemer 1935 he says: "5 Judges sitting at the Supreme Court of New York concurred in my favor." in reference to those suits. Anybody know the details (I'm guessing Mike Caveney does!)? Whether he collected any satisfaction other than the dubious publicity value of winning his case is another question...
I've found references to two relevant cases/lawsuits:
1. Goldin v. Weiss Brothers Clarion Photoplays,
202 A.D. 790, 194 N.Y.S. 938, N.Y.A.D. 1 Dept., Jun 05, 1922

2. Goldin v. Clarion Photoplays,
202 A.D. 1, 195 N.Y.S. 455, N.Y.A.D. 1 Dept., Jul 14, 1922

They seem to be tied together; I'm not conversant enough in legalese to say exactly what the connection is. I think the first citation is simply a granting of a motion to appeal.

The second has a little more detail.
Appeal from Special Term, New York County.
Action by Horace Goldin against Clarion Photoplays, Inc., sued as Weiss Bros. Clarion Photoplays, Inc., and another. From an order denying plaintiff's motion for an injunction pendente lite, he appeals. Order reversed, and motion granted, on plaintiff giving an undertaking.

The illusion "Sawing a Woman in Half," or "Sawing a Lady in Half," held to have been originated by plaintiff, and he was entitled to restrain its exhibition in a photoplay entitled "Sawing a Woman in Half."

Sawing a Woman in Half.
House, Grossman & Vorhaus, of New York City (Avel B. Silverman, of New York City, of counsel), for appellant.
Harry G. Kosch, of New York City (Milton H. Reuben, of New York City, on the brief), for respondents.

Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and GREENBAUM, JJ.


DOWLING, J.
Plaintiff appeals from the denial of his motion for an injunction pendente lite restraining the defendants from exhibiting, distributing or otherwise dealing in and with a motion picture, or photoplay, entitled 'Sawing a Woman in Half,' or 'Sawing a Lady in Half,' or such part thereof as shows, or purports to show, the illusion or act of severing a human being into two parts, or which shows, or purports to show, the manner in which the said illusion is accomplished. The following facts satisfactorily appear from the affidavits submitted on the motion:
Plaintiff for 25 years last past has been engaged in the theatrical profession in this country and elsewhere throughout the world, presenting to the public, in theaters and other places of amusement, new, novel, and extraordinary productions, more particularly known upon the stage as illusions or magic. The success of these illusions depends upon the inability of the average audience to grasp by observation the method employed by the performer, and their value, therefore, depends upon the degree of mystery in which the performer is able to envelop the means which he uses to accomplish the end.
Beginning in 1911, plaintiff was engaged in exhibiting an act which he had conceived some years before, known as 'Vivi Section,' which consisted of an illusion by which various parts of the human body were apparently severed therefrom and subsequently joined together. This act plaintiff produced himself, or it was shown under license granted by him, in Great Britain, Egypt, China, Japan, and Java, among other countries. As the result of his experience with this act, plaintiff conceived the idea that the illusion would be more effective, if an entire body were apparently separated into two parts, and, after devoting a great deal of time and thought to the subject, he finally, in the year 1919, perfected such an illusion and offered it for exhibition by himself, under the name 'Sawing a Woman in Two,' or 'Sawing a Lady in Half.' It was offered at that time to one Ringling, who was interested in circus shows, as well as in the production of stage illusions.
In April, 1921, plaintiff entered into a contract with the leading vaudeville theaters in the United States under the direction of the Keith interests, for the production of the said illusion upon the stage, and since that time he has publicly presented the same in the leading vaudeville theaters in this country, either in person or through other performers, to whom he delegated the right to use the apparatus or other properties necessary. The act was produced in first-class theaters, the remuneration received by plaintiff under his contracts amounted in some weeks to more than $2,000, and he had reason to believe that he could secure bookings for the act for an unlimited period of time, as it was in great demand, due to its drawing power and the apparent inability of audiences to grasp or explain the so-called mystery. The act has always been produced by plaintiff under the title 'Sawing a Woman in Two,' or 'Sawing a Lady in Half,' which he himself devised and first used, and these titles have become identified with plaintiff's name to such an extent that theater managers and the public immediately connect the two.
As one of the results of plaintiff's success, many imitations of his act have been attempted to be given by other persons, and he has been compelled to apply for injunctions against the imitators; he has obtained such injunctions in the District Court of the United States for the Southern District of Illinois, the District Court of the United States for the Western District of Pennsylvania, and the court of common pleas in Marion county, in the state of Ohio. Plaintiff has continuously asserted his sole right to the production of the illusion in question, and has advertised in the theatrical newspapers to that effect.
The defendants are engaged in the motion picture business; the Clarion Photoplays, Inc., being a manufacturer of such pictures, and the defendant Alexander Film Corporation being a producer thereof. The first-named defendant has produced a motion picture film advertised by it under the title 'Sawing a Lady in Half,' which as has been shown is the title used for years by plaintiff in advertising his illusion, and which has become connected and associated with his name in that regard. The second-named defendant has acquired from the other defendants positives and negatives of the film, by purchase or otherwise, with the right to exhibit the same in the state of New York and elsewhere, and with the further right to license and contract with exhibitors to exhibit such film. While the details of the illusion purporting to be exposed by the defendants vary in some particulars from the manner in which plaintiff produces his illusion, the conclusion cannot be escaped that the purpose of the defendants in the making and exhibition of their picture is to unlawfully and unfairly take advantage of the success which has rewarded the plaintiff's initiative and to deprive him of the fruits of his ingenuity, expense, and labor.
The main object of the film in question is to portray the severing of a human being into two parts and the restoration thereof intact. Not merely have defendants imitated or copied the illusion of which plaintiff is the creator, but they have undertaken to give a title to their picture, which is precisely the same title under which the plaintiff has continuously produced his act. The defendants claim that plaintiff is not the creator of a new and unusual act, and did not devise the illusion in question; but the evidence sought to be adduced in behalf of that contention is not convincing, and by no means answers the plaintiff's claims. For example, defendants claim there is no novelty in the illusion, because in the British Museum there is an Egyptian papyrus which contains an account of a magical sance given by a certain Tchatchaemankh before King Khufu, B. C. 3766, and wherein it is stated of the magician: 'He knoweth how to bind on a head which hath been cut off,' and in proof of this they refer to a publication called 'Magic,' written by one Albert A. Hopkins, and published in New York City in 1897. But upon examination of the said book it appears that the remaining part of the sentence in question is, 'He knoweth how to make a lion follow him as if led by a rope, and he knoweth the number of stars in the house (constellation) of Thoth;' but, while the author of the book suggests that the first of these alleged feats was accomplished by hypnotism, and adds, 'The decapitation trick is thus no new thing,' he offers no explanation as to how it was accomplished.
Defendants further refer to pages 48 and 49 of the same publication wherein a trick is shown, known as 'Decapitation'; but this is accomplished by means of a dummy head, and bears no analogy to the plaintiff's illusion, nor is the other act described therein, apparently performed upon the body of a clown, in any way as complete a mystification, nor carried to as successful a conclusion, as the plaintiff's act. Great stress is also laid upon the description by Robert Houdin, in his 'Memoirs,' published in English in Philadelphia, in 1859, of an illusion produced by one Torrini in Constantinople in the 18th century, known as the 'Two Pages.' But, similarly, there can be found no resemblance between the methods employed to accomplish the result in the variations of this illusion which Houdin described and the means resorted to by the plaintiff.
Defendants furthermore refer to the Indian basket trick, but that bears no resemblance to the plaintiff's illusion. For obvious reasons, the details wherein the various illusions differ in principle and method from plaintiff's creation will not be discussed herein.
The defendants further contend that their moving picture is not intended to expose the method by which plaintiff performs his illusion, but that it is a repetition of a method used by one Coutts, who claims to be an owner of an act which he has performed in vaudeville, known as 'Sawing a Lady in Half'; but he has not shown that he has preceded the plaintiff in the creation of the act in question, or that it is anything save an imitation of plaintiff's act, with points of difference intended to save him, if possible, from the consequences of his simulation. While the defendants strenuously deny that plaintiff originated the act in question, it appears that Coutts' modification or imitation of plaintiff's methods is an adaption of the method resorted to by one Selbit to produce the illusion in question, and plaintiff has already obtained an injunction against Selbit to prevent his reproducing the act in question.
Furthermore, plaintiff produces certain affidavits which seem quite convincing that plaintiff really originated the illusion in question. Harry Houdini, a producer of magical feats and illusions since 1882, and president of the Society of American Magicians and of the Magicians' Club of London, states that, so far back as his memory and records go, he is positive that he never witnessed a production of the illusion 'Sawing a Woman in Half' by any one other than the plaintiff. He also swears that the performance of plaintiff and those attempted to be made by defendants in the motion picture are not materially different, and that defendant's production exactly reproduces the illusion of Selbit, who, as has been said, plaintiff has already enjoined in the Ohio state court. Houdini is the author of a book called 'The Unmasking of Robert Houdin,' and he verifies the claim that the illusion of the 'Two Pages,' described by Houdin, is impractical for modern production, and could not now be presented upon the stage, and is distinctly different from plaintiff's act. Something more is required than merely the development of the theory of an illusion; to be successful, he swears, it must be so carried out as to completely deceive the public and by means which it cannot grasp.
Servais Le Roy, a professional magician for over 35 years, has been producing the illusion in question for many weeks under a license from the plaintiff, for which he pays him the sum of $250 weekly, which, he says, is the highest royalty ever paid to a creator of an illusion or magical performance; this being due to the great success it has achieved in the theatrical field. Naturally, he recognizes plaintiff's right of priority or he would not be paying this amount. He also swears that the production of this motion picture film will ruin plaintiff's performance and prevent the booking of further dates.
Carl Rosinni, also a stage magician for more than 20 years, makes affidavit that the plaintiff was the first person to conceive this particular illusion and to produce it upon the stage, and that he was present in the machine shop of Howard Thurston, the well-known magician, when plaintiff was constructing for Thurston the apparatus with which the latter was to produce the act under plaintiff's license. He swears to the identity of the act of plaintiff and that sought to be shown by defendant.
Joe Dolan, a vaudeville performer for 20 years and an exhibitor of magical feats and illusions, swears that no other theatrical performer or magician had produced this illusion, known as 'Sawing a Woman in Half,' prior to plaintiff's presentation thereof. He avers that the act shown by the defendants and claimed to have been performed by Coutts has been taken directly from that of Selbit, hereinbefore referred to.
Adelaide Herman, the widow of Alexander Herman, makes affidavit that her husband never produced the act in question and during her connection with his performances, which lasted over 30 years, she never heard of such an act being performed.
Harry Thurston, a stage magician, makes affidavit that the illusion, 'Sawing a Woman in Half,' is the sole invention of the plaintiff, who, at various times, in his presence, built, improved, and perfected his original idea of the illusion in Thurston's workshop, at Whitestone, Long Island. For the privilege of using the illusion, he allowed plaintiff to build the original outfit at his workshop, and paid him about $2,000 in cash and labor to assist in completing the original equipment.
It is shown that, as the result of the motion picture in question attempting to expose or explain the manner in which plaintiff performs his illusion, it is deemed by the management of the Keith circuit, whereon plaintiff has exhibited the same for a long time, to have the effect of depreciating the value of plaintiff's act to such an extent that, as they have advised plaintiff in writing, it would render plaintiff's act absolutely valueless, since the very mystery or trick of the act would be gone; and therefore, if the defendants' picture is exhibited in the same towns where the said Keith circuit had booked plaintiff's act, they notified him that it would be necessary for them to cancel his act therein.
Upon the facts disclosed by the affidavits herein, plaintiff has satisfactorily established that he is the originator of the illusion in question, which has achieved a great success under the title devised by him of 'Sawing a Woman in Half,' or 'Sawing a Lady in Half,' and that his creation of the illusion has been so universally recognized that the title thereof is in the public mind associated with his own name. The result of his ingenuity and skill has been to produce for him very large financial returns, with a reasonable prospect of their continuance for a long time to come.
The defendants have availed themselves of the very same title as that devised by plaintiff, and have made use as well of an imitation or modification of his act, which apparently produces the same result, and the effect of which on the public is to produce the same illusion as that which plaintiff produces. The affidavits lead irresistibly to the conclusion that the defendants have simply sought unfairly and unjustly to profit by plaintiff's success, by adopting the name which he gave to his illusion, and by copying his methods in an unfair competition and unreasonable interference with plaintiff's rights, which the courts should and will prevent.
The order appealed from will therefore be reversed, with $10 costs and disbursements to appellant, and the motion granted, with $10 costs, upon plaintiff giving an undertaking, the amount of which will be provided for by the order. Settle order on notice, and both parties may present a memorandum therewith, giving their views as to what the amount of such undertaking should be. All concur.
N.Y.A.D. 1 Dept. 1922
GOLDIN v. CLARION PHOTOPLAYS
202 A.D. 1, 195 N.Y.S. 455
So, it looks like Goldin sued Clarion Photoplays, a motion picture studio, because it produced a film showing one of his illusions, and how it was done. He lost a motion at the trial court level asking for an injunction against the studio for showing the film. The appellant court reversed the trial court, and granted Goldin court costs.

The cases are indexed under trademark law, and the tone of the opinion seems to be that in this particular case, the "Sawing a Lady in Half" trick under question is so associated with Goldin that he has obtained rights to it. Note that they did not say he had copyright to the trick or a patent in it. The ownership is more analagous to a trademark (although they never call it such). The appellant court grants Goldin's motion on grounds of "unfair competition" -- that the studio is trading on Goldin's reputation without his consent -- and make note of the fact that they used the exact same title as did Goldin. The court did _not_ say that Goldin owned the trick.

I'm no lawyer, but it is interesting to speculate that if the defendant (Clarion Studios) had used a different title, and had taken steps to not copy so exactly Goldin's presentation, they might not have lost.

It looks like Goldin was granted similar injunctions in PA, IL, and OH. Can anyone find record of those?

Another thread HERE asks about the origin of the trick. Goldin has purported here to have invented it in 1919. (The referenced thread claims that Selbit invented it in 1920; that would seem not to be the case.)

I'm guessing that CLARKE, DOWLING, SMITH, PAGE, and GREENBAUM are the NY Supreme Court judges (justices?) that Goldin referred to in the letter quoted by Hatch above.
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Postby Bill Mullins » 08/17/05 05:59 PM

Product of further research:

In 1933 (settled in 1938: "Goldin v. R.J. Reynolds Tobacco Co." 22 F.Supp. 61; D.C.N.Y. 1938), Goldin sued R. J. Reynolds because they disclosed the secret to "Sawing a Woman in Half" in their notorious series of comic page revelations of magic secrets. He claimed this disclosure would damage his ability to profit from showing this illusion, and one of the theories under which he sued was that the secret was a "trade secret", and that Reynolds had an obligation not to disclose it.

The court found that the secret was not really a secret by 1933. Goldin had patented the devices he used in 1923, in which he disclosed the secret workings , and had further disclosed the secret in Walter Gibson's 1927 "The Book of Secrets: Miracles Ancient and Modern", as well as in contemporary magic magazines. This being the case, Goldin had no grounds to proclaim that the secret was a "trade secret"; he had in fact disclosed it himself, and therefore Reynolds was perfectly in its rights to write up the illusion in its advertisements.

This case illustrates a couple of interesting points:

1. A magician, to claim a secret within the legal meaning of the term, such that he has property rights to it, must treat it as a secret. He can't disclose it in books, magazines, lecture notes, videos, etc., nor can he explain it in lectures, etc. If he must disclose it to coworkers in order to perform it, he should compel them to keep the secret via contract or other agreements.

2. A patent may grant temporary exclusive rights to build a device (the illusion hardware), but the trade-off is that the patent itself is a public document which must disclose the secret workings of the illusion (search the US Patent Office's website for "Tenyo" sometime for some interesting results).
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Postby Bill Mullins » 08/17/05 06:43 PM

A little more:

From 8 Rutgers L. Rev. 391 (1953-1954);
Plagiarism of Ideas and Protection against Spurious Claims; Kaps, Warren J.

In many instances the inventor is quick to prosecute his claim whenever he believes an infringement has occurred. This is well illustrated by the multitude of legal actions and injunctions sought by Horace Goldin, famous vaudeville magician, in his endeavor to protect his illusion, "Sawing a Woman in Half," from being presented by fellow performers. Goldin v. Clarion Photoplays, Inc., 202 App. Div. i, 195 N.Y. Supp. 455 (1922) (enjoined distribution of film exposing the illusion); See Variety, May 5, 1922. The controversy, which lasted several years, began between Goldin and P. T. Selbit, a European illusionist, who presented the same effect in competition with him. Goldin claimed that he was the originator of the act and accused Selbit of unauthorized use of his illusion. After the vivisection illusion attracted world-wide attention on the stage, Goldin finally sought to obtain an injunction against Selbit from the courts. See Billboard, Nov. 5, 1921. This was only the start, and for several years afterward Goldin was engaged throughout the country in one injunction suit after another in an effort to prevent other magicians from performing the illusion which he had so widely exploited. In the end the attorneys were the only winners and Goldin the financial loser, since a short while afterwards he was forced to file for bankruptcy proceedings. See G0LDWIN, IT'S FUN TO BE FOOLED.
If anyone is able to find the articles mentioned from Variety and Billboard, I'd really like to get copies of them.

Goldin's version of his story is in his book, _It's Fun to be Fooled_, online HERE.
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Postby Jim Maloney_dup1 » 08/17/05 07:40 PM

Bill,
I'll likely be at the NYPL this weekend searching through Variety and Billboard anyway, so I'll try to get copies of those articles for you.

-Jim
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Postby Bill Mullins » 08/17/05 09:12 PM

That would really be great. Thanks much.

I don't know how much library research you do. I've found it very helpful to take a digital camera with me. Easier than xeroxing, and it saves the dimes and quarters. Plus, now you have an electronic copy (which can then be emailed to Mullins, ha ha).
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Postby Jim Maloney_dup1 » 08/18/05 06:25 AM

Bill, thanks for the tip -- that's something I was actually thinking about doing. I imagine that the files are all on microfilm, though, so I'm not sure how easy it will be to get a picture. I will bring the camera along, though, in case it will come in handy. Plus, I have a scanner at home, so even if I do have to make copies, I can still e-mail you digital copies that same day. ;)

-Jim
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