"Genii Speaks", Genii Magazine, Vol 68, Number 4, April 2005

Discuss the views of your favorite Genii columnists.

Postby Guest » 03/17/05 01:48 PM

[sent via email to genii@geniimagazine.com on 3/17/2005]

Mr. Richard Kaufman
Editor
Genii Magazine
4200 Wisconsin Ave.
Washington, D.C. 20016

Re: "Genii Speaks", Genii Magazine, Vol 68, Number 4, April 2005

Dear Richard:

This is in response to your column "Genii Speaks" in the above referenced issue concerning the IBM's ethics policy and procedure. I am concerned that your column may be misleading as to exactly what our policy provides. I would summarize my comments as follows:

1. This is an ethics issue, not a legal issue. Whether a person could litigate and recover damages in a court of law in today's legal environment is not the standard for enforcing a moral and/or ethical issue by a private organization in restricting advertising in it's in-house publication distributed to that organization's membership.

2. The Joint Ethics Statement of the IBM/SAM provides in part:

" The International Brotherhood of Magicians and the Society of American Magicians join in recommending that all magicians adhere to the following code of ethical conduct:
...

3. Recognize and respect for rights of the creators, inventors, authors, and owners of magic concepts, presentations, effects and literature, and their rights to have exclusive use of, or grant permission for the use by others of such creations."

Our actions, as outlined herein, are designed to implement the above ethics statement as it relates to the advertising placed by unethical advertisers in the Linking Ring.

3. You imply that it's "best left to the parties involved to work it out[.]" I agree. Unfortunately, this is not always possible. By the time the issue is brought to our attention, the parties have usually tried but have failed to "work it out". We act only upon a written complaint made by the party alleging that his/her/its proprietary interest is being used without permission. If the originator doesn't object to us in writing in respect of the sale and/or manufacture of product over which he/she/it allegedly has a proprietary interest, then no action is taken.

4. That complaint is investigated by the Ethics Committee to determine whether such complaint has merit. If the evidence supports the complaint, the alleged offender is contacted.

5. The alleged offender is then given the opportunity to remove the product from his/her/its advertising, website and/or catalog, or respond with evidence of his/her/its own as to whether the alleged offender either has the rights to sell and /or manufacture such product, or has been given permission to do so by the party making the complaint.

6. To date, we have had two cases in which we have denied advertising access to the Linking Ring upon the failure of the alleged offender to respond or offer proof of permission. We have had one other case that was solved with a phone call. We have also investigated cases where the evidence of proprietary interest was questionable and no action was taken.

In conclusion, we act only upon a written complaint and take action only after an investigation has been made and the alleged offender has been given the opportunity to respond. We are enforcing our own ethics statement and we are taking this action independently and not in concert with any other publisher. It is up to each of us to take whatever action we deem advisable. The IBM has decided that a stance against unethical conduct in magic is the proper course of action for the organization.

Thank you for the opportunity to clarify our position.



William E. Evans
Legal Advisor
International Brotherhood of Magicians
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Postby Richard Kaufman » 03/17/05 02:39 PM

Since the original piece I wrote in "Genii Speaks" has not been posted here on the Forum, and since the I.B.M.'s response makes no sense without my original piece, I am posting it below. First, let me state that there is nothing misleading about what I wrote: It is a response to comments made by the Editor of the Linking Ring in regard to the legal term "Intellectual Property," about which he seems to know little. The response by William Evans posted above does not address what I wrote about, namely "Intellectual Property."

Here are my original comments from "Genii Speaks":

In its February 2005 issue, the editor of The Linking Ring announced, The I.B.M. Board of Trustees has taken the stand that we will refuse advertising to dealers who knowingly sell product that is the intellectual property of others.

Intellectual property is a fuzzy expression of uncertain meaning. It can cover things neither intellectual nor proprietary (e.g., my shopping list). It can include copyrights and trademarks, patents, trade secrets, personality rights, merchandising rights, and rights of publicity. Its application to magic tricks is erratic, confusing, and contradictory, mainly because magic tricks come in many different forms and formats, and what might be suitable for a patent in one case would be better served by a copyright in another case, while the third case might not qualify at all.

Not a single person advertising any trick in The Linking Ring could pass the test which the I.B.M. Board of Trustees has set up. It is literally impossible to determine with absolute certainty the ownership of any piece of intellectual property. There is no central registry of rights.

Laws are different in different countries, and there can be different owners for different territories. Even what appears to be a simple case, a book with a copyright notice, is not: what if the notice is wrong, or out of date.

Even if some certainty could be established, the Boards declaration goes too far. All dealers sell product that is the intellectual property of others. Of course, they do that with the permission of the owner, but the Board's wording doesn't allow for that exception.

Making sure the crooks are weeded out of magic is a noble objective, but isn't it best left to the parties involved to work it out?
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Postby Guest » 03/17/05 03:43 PM

Originally posted by Richard Kaufman:
First, let me state that there is nothing misleading about what I wrote: It is a response to comments made by the Editor of the Linking Ring in regard to the legal term "Intellectual Property," about which he seems to know little. The response by William Evans posted above does not address what I wrote about, namely "Intellectual Property."

You are correct Richard. My response does not address the definition of "Intellectual Property".
It was not my intent to engage in that discourse.


Here are my original comments from "Genii Speaks":

Even if some certainty could be established, the Boards declaration goes too far. All dealers sell product that is the intellectual property of others. Of course, they do that with the permission of the owner, but the Board's wording doesn't allow for that exception.
This is the subject of my response. I was concerned that the IBM's ethics policy could be
misinterpreted by that statement. I was respectfully clarifying the IBM's policy and procedure under such circumstances.

William E. Evans
Legal Advisor
International Brotherhood of Magicians
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Postby Guest » 03/17/05 04:06 PM

Mr. Evans

Does the IBM bar an offender from advertising if the investigation shows they do not have permission to sell a product or do they just bar the advertising of that particular product.
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Postby Guest » 03/17/05 04:10 PM

Also just a comment

Richard's actions as a private publisher are his personal choices. The Linking Ring is the publication of an organization and as such should answer the needs and concerns of the membership.
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Postby Guest » 03/17/05 04:29 PM

Originally posted by Randy DiMarco:
Mr. Evans

Does the IBM bar an offender from advertising if the investigation shows they do not have permission to sell a product or do they just bar the advertising of that particular product.
If the unauthorized product is advertised for sale or manufacture in any medium, we take issue with that. The cases which have arisen so far are based on internet websites for the most part. Advertising in other venues and in catalogs, however, sends the same message;i.e., the offender has no respect for someone else's proprietary rights. Even if the ad in the Linking Ring doesn't reference a rip-off product, we take issue with the fact that the offender advertises such product elsewhere. Again, this is a moral/ethical issue for the IBM and not a legal one. We are not trying to be the ethical police of the magic universe. We are simply doing what we believe is the right thing to do. It is not our intent to take issue with the position of other organizations or entities. Please re-read my original response. I just don't want magicians to misunderstand the position and procedure that the IBM is taking with respect to these issues, and that is why I addressed the subject.

William E. Evans
Legal Advisor
International Brotherhood of Magicians
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Postby Richard Kaufman » 03/17/05 07:35 PM

It is a genuinely sad fact that the ownership of most magic tricks is not recognized by law. The I.B.M. is attempting to circumvent the law by creating its own "moral" law.

The country is not governed by "moral" laws, but by laws that have been decided upon by the judiciary of the United States. Magicians are governed by the same laws as everyone else, not by some "special" or "moral" law that a club has decided upon.

Here is an example of where the I.B.M.'s thinking will lead: Every magic dealer in the United States is selling a version of "Glorpy." Every single one of these (that has a single solid kinked wire in the hem) is a copy of the original, sold without the consent of the originators and without any payment to Bill Madden and Bernie Trueblood. NOT A SINGLE DEALER STILL SELLS THE ORIGINAL. So, does that mean that the I.B.M. is no longer going to accept advertising from ANY dealer (and it must be EVERY DEALER if this "rule" is to be applied) who sells some version of "Glorpy"? Shall we name the names of all the dealers who are now going to either get kicked out of the I.B.M.'s ad pages or be threatened by the I.B.M. if they don't stop selling that item?

Well, that's just a single item. The I.B.M.'s edict cannot possibly be enforced, and for any organization to dictate what private businesses may and may not sell is surely going to get them sued for something along the lines of restraint of trade.
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Postby Guest » 03/17/05 09:03 PM

Enforceable or not, I am glad to see these two organisations at least making an attempt to discourage the more blatant thieves. Of course they don't have the resources to go back in history and right every wrong, but there are contemporary pirates whose bare-faced arrogance requires people to stand up and be counted. To do nothing at all is to condone their actions.

Perhaps IBM and SAM are simply shouting at the tide. At least they're shouting.
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Postby Guest » 03/18/05 06:42 AM

Interesting...

I sent the guy a note with a couple of questions.

I will reserve comment until I get a reply. Silence and lack of action are also answers.

It's not what someone says, it's what they DO.
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Postby Guest » 03/18/05 07:08 AM

Originally posted by Kent Blackmore:
Perhaps IBM and SAM are simply shouting at the tide. At least they're shouting.
I don't care for noise pollution. Nor for anything less than congruence. If you have a rule and wish to live by it... good. If you want others to respect your rule... then you must either convince or compel, by example, force, cajoling or outright bribery. The path is the ethos.

Richard, the estates of those who've been wronged can be contacted. Most folks are open to negotiations. Failure to pursue such matters shows a blatant disrespect for the legal/moral aspect of our culture.

What does matter is how we proceed from where we are. Mere grandfathering only preserves the worst of what we were and guarantees we will pass on the worst example to the next generations while leaving more black marks in our history.

Al Wheatly's (sp) estate is unreachable? Joe Karsons's also?

Is it truly that difficult to get permission?
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Postby Terry » 03/18/05 08:55 AM

The country is not governed by "moral" laws, but by laws that have been decided upon by the judiciary of the United States.
Actually, you are wrong. The laws of the United States was based on a certain 10 moral laws. Sinec you don't want religion discussed, I will respect it, but don't assume the US is without moral laws.
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Postby Richard Kaufman » 03/18/05 09:01 AM

Sorry, Terry, but YOU'RE wrong. The 10 Commandments are irrelevant to this discussion. End of mention.
The only enforceable laws are those created by the government and judiciary.
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Postby Guest » 03/18/05 12:20 PM

Originally posted by Richard Kaufman:
...The only enforceable laws are those created by the government and judiciary.
Actually, an organization can enforce its rules/laws by financial or political coercion and or expulsion of offending members.

I got a reply, which when translated into action items essentially states that if nobody makes a case ( has to be of semi-legal format) against those accused of profiteering works, (yelling is not a case) and/or if a case is not compelling... no administrative action.

I can think of better things to do than make a case for myself there. And can't see any likely positive outcomes for magic, the organizations or for myself. One might well suspect the estates of those whose works are so freely taken are likely to wish to avoid such actions as well.

This works very well till you find your work taken and profiteered by others. Then again if one has no intention of creating any works that may be of value, then one can just sit back and watch the show.

I will sit back on this issue. There are plenty of other shows. I like magic shows. I also like comedies. I've heard that drama is not so difficult as comedy, as one has to take an absurd premise and act as if dead serious about it.
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Postby Guest » 03/18/05 12:46 PM

Originally posted by Richard Kaufman:
Sorry, Terry, but YOU'RE wrong. The 10 Commandments are irrelevant to this discussion...
Actually the 10 Commandments were fundamental to the founding of our nation. Oddly, the founders were not Jews. They did however treat the natives the way the ancient Jews led by Moses swept away any obstacles in their path toward founding a new homeland. These same people claimed to be Christian yet were unable to observe the "golden rule" much less manage to keep themselves from "helping others with splinters" etc.

Okay, back to what is enforcable...

Somewhere between "take what you want" and "do you have a license for that chop-chop cup" is a place we can agree to live. How we handle those who take and what sort of consequences we bring in those situations speaks to our ethos.
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Postby Guest » 03/18/05 01:02 PM

The position as outlined by Evans strikes me as a pretty reasonable middle ground. Yes, just about every dealer sells stuff that is the IP of someone, but somehow has morphed into the common heritage of magic (without the originator's permission).

The IBM, as a matter of practicality, cannot stop this.

What they can do is respond to specific individual complaints. If the original owner doesn't care enough to take a stand, why should the IBM (or Genii, or Magic, or SAM) do so on their behalf?


Where it would get interesting would be if Madden and Trueblood (or their representatives or estates) were to raise a legitimate beef about Glorpy, what would the IBM do? (Note that it's not clear from Evans' statement that estates have standing to make a complaint -- is it a commonly held belief that they should? Should Vernon's kids have any rights to control "Triumph" or "Twisting the Aces"?)

What would the IBM do if JT were to complain about all the derivative "borrowings" of his Fingertip Coins Across? That's a heck of a lot of ad space that could open up.
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Postby Guest » 03/18/05 01:29 PM

Originally posted by Bill Mullins:
The position as outlined by Evans strikes me as a pretty reasonable middle ground. Yes, just about every dealer sells stuff that is the IP of someone, but somehow has morphed into the common heritage of magic (without the originator's permission).

The IBM, as a matter of practicality, cannot stop this.

What they can do is respond to specific individual complaints. If the original owner doesn't care enough to take a stand, why should the IBM (or Genii, or Magic, or SAM) do so on their behalf?

Where it would get interesting would be if Madden and Trueblood (or their representatives or estates) were to raise a legitimate beef about Glorpy, what would the IBM do? (Note that it's not clear from Evans' statement that estates have standing to make a complaint -- is it a commonly held belief that they should? Should Vernon's kids have any rights to control "Triumph" or "Twisting the Aces"?)

What would the IBM do if JT were to complain about all the derivative "borrowings" of his Fingertip Coins Across? That's a heck of a lot of ad space that could open up.
Dai Vernon published Triumph in The Stars of Magic and assigned copyright to Louis Tannen, Inc. There have been a FEW additions to his work, such as using Herb Zarrow's shuffle, Daryl's Display, the color changes, royal flush work, (Dingle) and perhaps my own in-the-hands approach. ALL OF WHICH CITE AND HONOR VERNON and make clear reference to the original work. No pirating there.

Aside from popularizing Alex Elmsley's Ghost Count, and burying the Jordan Count, the routine Twisting The Aces is a great way for folks to start looking at the rest of Vernon's published work.

A deeper question comes when we have folks offering to teach items that are in print.

The Zombie, Glorpy, Zig-Zag and Chop-Chop Cup items going into a sort of public domain situation are things we COULD remedy.

If we want to respect IP, then... folks could

1) set aside their ill gotten gains.
2) ask the estates of those involved (could be found real fast by motivated vendors and IBM/SAM scholars) for a license and/or agreement to produce more of the items
3) pick up with those items when under good terms.
Come on folks, what could those guys want, a dollar? two?

4) In the mean time... plenty of stuff with clean history and provenance to work with.

Such would also give some meaning to the notions in "Lent" in this community :) I'd like to see things get better around here. Suggestions welcome.
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Postby Guest » 03/18/05 02:30 PM

Originally posted by Jonathan Townsend:
Originally posted by Bill Mullins:
[b] (Note that it's not clear from Evans' statement that estates have standing to make a complaint -- is it a commonly held belief that they should? Should Vernon's kids have any rights to control "Triumph" or "Twisting the Aces"?)
Dai Vernon published Triumph in The Stars of Magic and assigned copyright to Louis Tannen, Inc. There have been a FEW additions to his work, such as using Herb Zarrow's shuffle, Daryl's Display, the color changes, royal flush work, (Dingle) and perhaps my own in-the-hands approach. ALL OF WHICH CITE AND HONOR VERNON and make clear reference to the original work. No pirating there.
[/b]
Tannen's copyrights to the collected book, "Stars of Magic", are just that -- a right to make copies of the book. It has never occurred to me that Lewis Tannen picked up all of what magicians recognize as IP rights to a trick by owning the copyrights to a specific published description.

Up until he died, at least, I think Vernon had some sort of proprietary right to "Triumph" above and beyond the fact that a copyrighted description belonged to Tannen. If he didn't, then I don't see how any claim of ownership of a trick is legitimate. Does Steinmeyer lose rights to his illusions once they are presented on copyrighted TV shows?

The question I was trying to explore, and I was using a specific example of Vernon and his children to introduce it, was to what extent to the "rights" that magicians enjoy (or would like to enjoy) pertaining to the tricks they invent pass on to their heirs? And since I've never heard of these rights being mentioned and enumerated in wills, how should multiple heirs divvy them up?

Suppose Robert Harbin was survived by a widow and two children -- who gets to control "Zig Zag Girl"?
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Postby Guest » 03/18/05 02:35 PM

Imagine this scenario...

De Kolta Productions releases a DVD, "The Moron at the Card Table", featuring the 'cutting edge' card magic of Nelson T. Downs, Alaska's number one trade show magician.

De Kolta Productions take out a full page advertisement for this DVD in the September 2005 and October 2005 issues of "The Linking Ring".

Also appearing in the October issue of "The Linking Ring", is a review of the DVD. The review is scathing of the product and the producer as it details how all of the material has been blatantly ripped off from a variety of other sources.

As a result of this review, De Kolta Productions decide to stop advertising in "The Linking Ring".

Mission accomplished.
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Postby Richard Kaufman » 03/18/05 03:38 PM

Robert Harbin assigned the copyright to his book to The Magic Circle. So, The Magic Circle owns not only the rights to the book, but (if an illusion was something the law recognized that you could own) the rights to "Zig-Zag" was well.

But, since the law doesn't recognize that you can own the rights to an illusion, everyone and his brother has been making Zig-Zags.

Is the I.B.M. going to stop taking advertisements from everyone who sells a Zig-Zag? I don't believe there is a SINGLE authorized version on the market, so now ANYONE selling a Zig-Zag, or a Glorpy, or a Chop Cup, or a Scotch and Soda, or ON AND ON AND ON, will have their ads barred from The Linking Ring?

How many items do I have to list to make my point?

A few years after this new policy starts being enforced, The Linking Ring will have about 10 pages of ads and the IBM will find it impossible to pay its printing bills. And either the magazine will be reduced to a pamphlet or the organization will go bankrupt.

Or, because Chop-Chop has no living relatives (perhaps) and therefore no one to complain, does that mean it's okay for the Chop Cup to be copied and sold by lots of dealers? What's the story here? Do we have to find a distant cousin? Why does the I.B.M. only take action if there's a complaint by someone who CLAIMS to own an item? The law doesn't recognize legal ownership of these things.

It's a very sticky wicket, indeed.
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Postby Guest » 03/18/05 04:09 PM

I'm with you, Richard. Outright piracy is deplorable, but the art of magic begins with imitation and evolves through variants on the original sources. I remember Bruce Elliot listing something like ten effects that comprise the entire realm of magical entertainment. Trying to stop this ancient cycle of imitation/variation with new rigid rules is like trying to stop the rain by catching it in your hat. And that is typical of the sort of baggy pants routine that the IBM leadership seems to get into every few years.

Best regards,
Glenn Godsey
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Postby Pete Biro » 03/18/05 06:45 PM

Thhis is why Joe Porper and I have come to agreement for a licensing with the Paul Fox Estate to produce a number of the items he created.
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Postby Guest » 03/19/05 07:27 AM

Hi all,
after reading this topic i do have a question:

Don't you think it's finaly time to have an organisation that deals with copyright/sources for magicians?

I really believe that with the effort of many of us together with the technology available today like the internet we could start making an index of routines, inventions, techniques, sleights and so on. If it's in a form of a collaborative work (e.g:like a forum)very quickly we could indentify origins.

There are many knowlegable people out there as wel as great websites with lot of sources... that could be a good start...

In fact i have started www.magicbooks.be a few months ago to have a place where we could identify sources. This could be a good place to start... The only thing we need now is more people to help us grow the resources.

All the best,

Jacky
www.magicbooks.be
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Postby Steve Bryant » 03/19/05 10:30 PM

The April issue is a wonderful meaty issue. The Magic Square is fun to work through. Perhaps most enjoyable is that the ads and David Regal's column have me drooling for several new books (it's been a while since that happened). One of the few I had already purchased was Peter Duffie's excellent Subtle Miracles. Question: Does anyone know what the cover photo of Subtle Miracles is a photo of?
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