New Dai Vernon DVD ReleasedI

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Postby Richard Kaufman » 12/18/10 08:49 PM

I saw this on Alan Watson's e-zine this evening. I'm wondering if they've gotten permission from Vernon's estate to release this, otherwise it's not legal:

14. Dai Vernon's Last DVD
--------------------------------------------
Message by Graham Etherington (Aust)

Dai Vernon in 1980 made his last overseas trip to Australia where, with Mark Wilson and family, they endeared themselves to magicians as guests of the 17th Australian Convention of Magicians - International.

Following the convention he graciously agreed to make this Video. Believed to be the last one he ever made (he was 86 at the time).

Apart from a few private copies this is the first time it has been released and made available to all Magicians.

It runs for 20 minutes and includes 3 Card Monte (Find The Lady), Cards to Pocket, Colour Changing Card, Cups & Balls and Linking Rings.

Not studio quality but it has been professionally recovered from the original Beta tape format.

The special release price just $15 postpaid to anywhere in the world.

We think this could become a collector's piece.

Order your DVD through Graham Etherington mrtricks@ozemail.com.au
VISA Mastercard or PayPal accepted.

Magically
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Postby Magic Randy » 12/19/10 12:37 PM

Thanks Richard. I tried ordering one.
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Postby Bill Mullins » 12/19/10 06:20 PM

Is it NTSC or PAL?
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Postby Don Hendrix » 12/19/10 06:20 PM

Randy,
Sent you a PM. If you don't receive it, please email me at fadtastic2003@yahoo.com
Thanks.
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Postby Don Hendrix » 12/19/10 06:22 PM

Not sure about NTSC or PAL, but either should play on your computer.
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Postby Ian Kendall » 12/19/10 07:13 PM

Given that it's coming from Oz, PAL is the best bet.

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Postby Magic Randy » 12/20/10 11:05 AM

Don Hendrix wrote:Randy,
Sent you a PM. If you don't receive it, please email me at fadtastic2003@yahoo.com
Thanks.


I received the PM but the reply did not work. Maybe because I use Firefox.

I sent you an email.

Randy
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Postby Richard Kaufman » 12/20/10 01:14 PM

Our PM system is not working properly since our last upgrade.

We've mentioned this many times.

We are trying to get it fixed but the company is a pain in the ass.
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Postby Magic Randy » 12/20/10 02:51 PM

Richard Kaufman wrote:Our PM system is not working properly since our last upgrade.

We've mentioned this many times.

We are trying to get it fixed but the company is a pain in the ass.


Hi Richard,

FYI: I Could not send a PM, but I was able to receive Don's PM.

Randy
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Postby Jonathan Townsend » 12/20/10 03:28 PM

While one can send a PM

it's the REPLY button that does not
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Postby Magic Randy » 12/20/10 09:44 PM

Got it. Thanks Jonathan...
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Postby Jeff Pierce Magic » 12/21/10 10:59 AM

[quote="Richard Kaufman"]I saw this on Alan Watson's e-zine this evening. I'm wondering if they've gotten permission from Vernon's estate to release this, otherwise it's not legal:

This is an interesting situation. If Vernon agreed to perform on this film footage, does it not belong to whomever shoots and owns the film? Is he not giving his permission by the fact that he performs for the camera? it does say that he agreed to perform for a private group and knew he was being filmed.

I'm very curious as to the law on this.

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www.jeffpiercemagic.com
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Postby Magic Randy » 12/21/10 11:40 AM

I can confirm the format of the DVDs.

They are PAL which is the system in Australia. They are non-regional.
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Postby David Ben » 12/21/10 12:06 PM

It is the position of the Estate of Dai Vernon that they do not have the authority to release this footage. It is one thing to take a video of the Professor - assuming they even had permission to do so - and another to release it as a commercial endeavour some 25 years after the fact. The family is also concerned that the footage portrays Vernon in a positive light.

Also, there are laws in most jurisdictions the allow contracts with seniors to voided if they did not receive independent counsel. The idea is that seniors are easy prey. In this particular case, there wasn't even a contract.

Now, I have initiated discussions on behalf of the Estate with the producer of this video, asking him to stop selling it until this matter can be cleared up.
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Postby Bob Farmer » 12/21/10 03:06 PM

Unless the distributor has a signed agreement that specifcally allows for this use, any manufacture, distribution or sale would be an infringement, of among other things, the Vernon trademark rights (owned by his estate). This is as true in Australia as in the U.S.
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Postby the Larry » 12/21/10 04:14 PM

Where I come from a verbal agreement is just as binding as a written contract. If Vernon agreed verbally to the shooting and later use then they have any right to do that. Perhaps there are witnesses who would attest to the verbal agreement.
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Postby Tom Gilbert » 12/21/10 04:52 PM

As David stated, if he did allow the filming does that automatically include selling the footage commercially?
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Postby the Larry » 12/21/10 05:19 PM

It depends on what was agreed. My point is that that agreement could have been verbally. It is not unreasonable to assume Vernon agreed to the taping as well as to its later use in a product for sale.
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Postby Bob Farmer » 12/21/10 06:04 PM

A verbal agreement, in this case, isn't worth the paper it isn't written on.

Australia, as well as many other countries (like the U.S.), whose law is based on English law, have a requirement (usually in an act called the "Statute of Frauds"), which requires that certain agreements must be in writing to be enforceable. For example, if the agreement is to take more than one (1) year, it has to be in writing. That's the case here, so if it's not in writing, no deal.

For that and many other reasons, the Vernon estate has the veto power here.

It's somewhat surprising, that anyone with even the slightest interest in Vernon, would not know about David Ben's relationship to the Vernon family, and would issue a DVD like this without contacting David for permission.
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Postby the Larry » 12/22/10 11:33 AM

Sure Bob you can make a big legal battle out of it. But if Vernon agreed to it, gave his word, and there are witnesses that attest to it then I see nothing wrong with it even 25 years later. In the US everything is being made into a lawsuit because there are too many damn lawyers who have nothing better to do than sue. What about common sense? What about keeping and standing to your word? Vernon's family never cared much about his magic anyway.
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Postby David Ben » 12/22/10 01:15 PM

Larry, it is all hearsay. How do we know whether or not Vernon - aged 92 or so - was forced into "agreeing" just to get out of a difficult situation. This happened to him constantly. Every other deal he did around this period he signed agreements authorizing the sale and distribution of the product. Also, I don't think you should make such blanket statements about whether or not his family cared much about his magic. You simply do not know.
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Postby the Larry » 12/22/10 04:38 PM

David, oh sure, this is just my opinion. I neither know what happened in Australia nor do I have any stake on either side of the fence. I am simply observing and offering an opinion. And as such I can offer a somewhat unbiased opinion which you obviously can't.

To be fair from what one can read Vernon neither cared much about his family either. So I guess it was a mutual disinterest. But that is beyond the point. I will offer here a complete hypothetical but nevertheless very believable or plausible scenario.

Assume Vernon was invited to Australia - all expenses paid - flight, hotel, meals - he got the royal treatment. I have heard this from other of his international trips and I would not assume it unreasonable. So why is it then so unreasonable to assume when the Club asked if they can tape and later offer the tape for sale that Vernon gave permission? Neither an unreasonable request nor an unreasonable concession by Vernon. Would make total sense.

Of course, I don't know if this was how it went down but it is much more plausible to me than the conspiracy theory you are offering that they secretly taped him, forced him into a contract, and with very mean intentions tried to trick him by waiting 25 years and then release it to 'damage' his name. Come on, let's be grown ups here. The Club has every right, it actually benefits the Vernon legacy, and magicians who love to see Vernon benefit, too. And anyway, they are not going to make a fortune from it, so what is the big deal. It is just a lot of noise about nothing.
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Postby Jonathan Townsend » 12/22/10 04:54 PM

It's magic moot court.
Bring out the kangaroos?

"the club has every right" -?
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Postby Jim Riser » 12/22/10 05:01 PM

Larry, Larry, Larry;
The relationship between Vernon and his family has nothing to do with the matter. If the club or an individual have footage of Vernon, it would not give them automatic rights to sell nor distribute the material. With no valid contract such rights belong to the heirs. It is certainly easy enough to negotiate a deal with the heirs- assuming the footage is decent.
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Postby Richard Kaufman » 12/22/10 05:22 PM

Bob Farmer is a practicing attorney in this area. He knows what he's talking about.

"the Larry" is someone who likes to spout his opinion in the matter regardless of whether he is right or not. There is no point in arguing with him.
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Postby Bill Mullins » 12/22/10 05:31 PM

What is the legal theory behind the idea that Vernon's estate's permission is required to do this?

It can't be copyright -- copyright vests in whoever filmed him, not Vernon himself.

Is it privacy? It wouldn't seem like Vernon had much expectation of privacy in a convention setting.

Is it publicity? If the video is simply of Vernon lecturing/performing, it wouldn't seem like his likeness/image is being used to endose anything.
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Postby Richard Kaufman » 12/22/10 06:09 PM

Bill, it has to do with ownership of someone's image and material. This is well settled in entertainment law. (In a case involving Bela Lugosi Jr., who was the attorney for the estate of the Three Stooges.)

Just because someone shoots a video or film or person X, doesn't mean that video-maker has any right to show it to anyone publicly or sell it. The rights to person X's image belong to him or his heirs. Ditto for letters: just because you own a letter (or a diary) written by person X doesn't mean that you have the right to publish it. This is also settled law.
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Postby Tom Stone » 12/22/10 06:25 PM

Bill Mullins wrote:What is the legal theory behind the idea that Vernon's estate's permission is required to do this?

It can't be copyright -- copyright vests in whoever filmed him, not Vernon himself.

Statements like that...

Dai Vernon had copyright on his own artistic work. Those rights can not be made void, just because someone pointed a camera at him. When he passed away, the ownership of his intellectual property went to his estate. It works the same as with any other artistic work.

Even though US copyright still is a horrible mess, things are pretty simple in this case, since it probably falls under Australian copyright, which is rather straightforward in these matters.
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Postby the Larry » 12/22/10 06:49 PM

And what if Vernon said: "Sure you can tape me and sell the video! You invited me here and paid for the trip. Go ahead I don't mind. Actually it is an honor for me if you think a tape would sell."
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Postby Jim Riser » 12/22/10 06:59 PM

None is so deaf as he who will not listen.
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Postby Bill Mullins » 12/22/10 07:20 PM

Richard Kaufman wrote:Bill, it has to do with ownership of someone's image and material. This is well settled in entertainment law. (In a case involving Bela Lugosi Jr., who was the attorney for the estate of the Three Stooges.)

The rights that Lugosi fought for exist only in states that have passed celebrity rights laws. They didn't exist at all before that, and with all due respect, they aren't completely "settled". And the use of celebrity's image, etc. has to have an element of endorsement. If I make and sell top hats, I can't just put Fred Astaire's picture on the label and call them "Astair Top Hats." I may be able, however, to sell pictures of Fred wearing a top hat (assuming I have copyrights or licenses to use the picture).

The ownership of the image, voice, name, likeness, etc. isn't all encompassing.

Just because someone shoots a video or film or person X, doesn't mean that video-maker has any right to show it to anyone publicly or sell it. The rights to person X's image belong to him or his heirs.

With certain exceptions as noted above, and arguing over the boundaries of those exceptions are why IP and Entertainment lawyers get paid more than magicians.
Ditto for letters: just because you own a letter (or a diary) written by person X doesn't mean that you have the right to publish it. This is also settled law.

True. This is wholly covered by copyright law, a separate field altogether. Whoever filmed the video of Vernon owns the copyrights to that video. If Vernon performed copyrighted material in that video, the owner of that material also has an interest in the video. But that isn't what we are talking about here.
Richard, neither you nor I (nor most of the people in this thread) are lawyers, and I was hoping a good one (Bob?) would step in and give a more detailed answer to my question.
Is a simple documentary film of a magician doing what a magician does, in a lecture/convention format, the sort of thing that the Celebrity Rights laws protect? It's akin to a documentary, which is akin to news reporting, which is pretty much exempt from these issues.
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Postby Terry » 12/22/10 07:41 PM

The Presley family copyrighted/trademarked Elvis' name/image/etc. to prevent and control access.

Could/should this have been done to protect the Professor and his heirs? If it was done, then wouldn't they and they alone have the final say about anything pertaining to Dai Vernon and/or his estate?

An ethical business person would work with the estate to ensure all parties are within their rights and the law. Period.
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Postby the Larry » 12/22/10 10:11 PM

What Kaufman and many others here seem to not understand is that there is a huge difference between private letters sent from the author to a specific recipient and a video that was shot with full consent obviously meant to be shared with others - why else would it be video taped?

Vernon agreed to the taping. Some like to conveniently forget that. It has nothing to do with privacy laws.

Would this be say a family movie showing Vernon among his friends and family then this would be a different matter. But here we have Vernon consenting to being taped at a convention. This is very much bullying by the estate nothing more.
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Postby Richard Kaufman » 12/22/10 10:19 PM

Videotapes made with the promise that "I only want it for myself" have been made for decades in our field.

If Vernon was here it would be an easy matter for him to decide whether he would allow it to be released or not based upon how he felt about the actual footage. Since he's not here, his heirs inherit that decision.
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Postby Max Maven » 12/23/10 02:37 AM

Richard Kaufman wrote:Videotapes made with the promise that "I only want it for myself" have been made for decades in our field.


Indeed. And, I can say from personal experience, such recordings almost never remain private. The first person agrees to make a copy for a friend, who is instructed to keep it to himself. But, the process repeats, and repeats, until the number of copies is exponentially larger.
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Postby Paul Gordon » 12/23/10 03:51 AM

A "well known" magician friend of mine obtained (from another well-known magi's collection) film footage of Vernon's visit to England in the 1950's. It's good footage; I've seen it. Vernon in good form in his early sixties. He's told me he will never release it and seems apathetic as to its importance. But, what is sad is that when he dies it'll probably get thrown by his non-magic wife. Then 45 mins of VERY RARE 1950's Vernon footage will get lost forever. Btw, he has no desire to try and obtain permission to get it released to the fraternity...and if he read this thread, I wouldn't blame him. (And, which is why I've decided to keep my extraordinary rare film of Bob Read private; forever!) PG
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Postby mrgoat » 12/23/10 06:53 AM

Seems such a shame to me that so much astounding footage is being lost every day.

Especially as it is SO EASY to digitise and share this content with thousands of interested people.

IDEA: All magicians agree that when they die, any footage of them that is of interest to anyone else gets put on DEADMAGICIANSVIDEOS.COM (insert other domain of your choosing) and that costs x per month to be a member of and all profits go to a magic-related charity. (I know it will never happen, because of egos, but wouldn't it be wonderful...
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Postby El Mystico » 12/23/10 08:07 AM

I think it is unfortunate that, because of the way this thread has developed, David Ben is looking like "the man who says no". We shouldn't lose sight of what he has done to preserve memories of Vernon; his biography of Vernon, the Spirit of Magic programme with the restored film of Vernon, and his role in Revelation.

I'd like to think that, if footage of Vernon in his prime does exist, David would be at the forefront of helping get it available in the best format possible, with everyone's consent.
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Postby Randy Sager » 12/23/10 08:15 AM

I don't think David Ben is looking like the "Man who says no" by any stretch of the imagination. He is looking out for the Vernon estate as he should be. The Larry has no idea what he is talking about and is the "Man who doesn't know jack about much of anything."
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Postby Jonathan Townsend » 12/23/10 09:49 AM

At what point does private use become published or public use?

IE I have written permission to make a video clip for private use. Can I post that on my web site as part of my content? Can someone else link to it on theirs? Can a third party pull down the linked video and then give it to others on their instructional video at a lecture? Can that third party sell the instructional video which includes the content from my website?

Inquiring minds want to know - including citations.
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