Something troubling in Steinmeyer's new book

Talk about what is being written in other magic publications.

Postby Umpa Duze » 12/23/11 12:38 AM

Hi All,
I am a diehard Steinmeyer fan and have thoroughly enjoyed his writings including the recent Technique and Understanding which I can recommend to anyone who wants to get inside a brilliant designer's mind and see a glimpse of his process. As I was reading, I came across a couple of passages that really made me stop and wonder about the nature of magic as a discipline. As an academic in another field, I routinely use published source material, properly cited, to make, build on or challenge ideas. All academics build on past work either by demonstrating where the conventional wisdom is wrong or where new evidence supports a particular theory over another.

To my knowledge, nowhere beyond the world of magic is it required to get someones permission to present work that is already in the public domain. No other discipline frowns on analysis of work presented publicly or claims that a particular flourish or idea belongs to its inventor at the exclusion of others. And, nowhere in academia could erroneous published work go uncorrected for generations when the leaders in the field know better. This is what startled me in Steinmeyers book.

At one point, Jim describes the periscope table first published in The Oriental Magic of the Bambergs explaining that a number of authors had published explanations of the table mechanics without including some of the finer points such as internal lighting to compensate for the dullness created by the mirrors. Indeed, he argues that lacking first-hand experience with the equipment they offered Written descriptions of illusions that simply could not work. One could argue that this is precisely the type of correction that I am concerned about. But then, later, in describing a version of the Cutting a Woman in Half Illusion he reveals that the original author that presented the ineffective method confided in Jim that he was embarrassed that it had been published. That same method was republished again and again without any magic scholar raising the issue for generations. That is tragic.

If there was a more robust magic scholarship in which the field examined, debated, built on and revised methods as is done in virtually every other field, wouldnt we be further along? If we stopped acting from a place of scarcity and started creating abundance by openly trading in ideas rather than worrying so much about exclusive ownership we could grow so much faster. We might even get catalogs of new magic that did not look like those from the 1950s. We can credit the originators without stifling the debate. And, for god sakes, if you know of an effect that is being published that simply does not work as explained, write about it and lets help the next generation find the best ideas to build on.
Cheers,
Umpa Duze
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Postby Jonathan Townsend » 12/23/11 10:19 AM

You're begging at least one question there. Let's go with the root cause item - what brings an item in magic into the "public domain"?

Maybe later on we can have a discussion of "when can one presume to gain ready access to the details behind the works of another performer?"
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Postby El Harvey Oswald » 12/23/11 03:48 PM

i'm not troubled
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Postby Richard Kaufman » 12/23/11 04:05 PM

Sometimes, when things are published incorrectly, many people simply don't notice because they aren't reading that closely, or actually building and performing the tricks (or in the case of sleight of hand, just learning the sleights).

Many tens of thousands of items that have been published in our field have never been performed by ANYONE other than (perhaps!) the author.

That's where the problem lies.
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Postby mai-ling » 12/24/11 01:22 AM

I will have to look back at what you are speaking of.
I don't remember anything about Okito/Bambergs.

I can attest to what Jim went through to secure the
rights to the plans and routine for "The Travel" and
I give a lot of credit to Jim for knowing about something
that could've been lost forever. If it was for
Uncle Jay telling him about the illusion my father
invented and he simply wrote on a piece of paper
"The Travel." This illusion would have been lost to the world.

I know that with Okito, when he was working on one of
his final books, it was credited to my father for describing
the routine and how the effect was done for the Kuma
Tubes. Theo actually forgot but since it was known that
my father did them and it was acclaimed that he did it better
than Kuma himself, it was that reason why he went to
my father. I'm sure through the writing, that some
things were lost (I am not sure).

So even then, it can be said that many things can be
incorrect or mis-be-forgotten. It's not done on purpose
is just a blip. With Theo and his family, there's A LOT
of documentation available.

Jim puts a lot of time and effort in his books.
That's why they are excellent.
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Postby Umpa Duze » 12/24/11 04:23 AM

Hi All,
First thank you for your comments. They raise a number of interesting issues.

Let's take these responses one at a time. First, when does something enter the public domain? Here I am not referring to the point in time when copyrights or patents expire. I am writing about the unique ethos in magic literature that one should not build on something that has been published or witnessed. Notice that I do not mean copy, but use with attribution. For me, the moment one publishes and sells a book/DVD/article to the public, that information enters the public domain as I am referring to it. That is the case in every field I am aware of and is why we have Fair Use laws, to promote the growth of knowledge and understanding.

Second, Richard describes a situation where a lack of firsthand experience results in the continuation of misrepresentations that are not only deceiving the reader, but are inhibiting a vigorous debate about better options based on experimenting with actual work. Again, it seems to me that the degree to which unwarranted assumptions and claims are made in the literature can best be dealt with by abandoning the tradition of exempting magic from the norms of scholarship in other fields. There are a lot of bad ideas in psychology, political science, education, or biology and yet the structure of the literary debate helps ferret out those wrong ideas.

In the case of the sawing a woman in half, it appears that even the original author was aware that the effect would not work; this was an understanding shared with others whose position in the magic world seems to imply an obligation to straighten out the record in order to improve the quality of the disciplines literature.

Mai-Lings point about the quality of Jims research is right on. And I agree that error always creeps in particularly when verbal histories are passed through generations. What I am suggesting is that error is inevitable, but the way magic handles scholarship in the field preserves error to the detriment of the literature.
Cheers,
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Postby Tom Stone » 12/24/11 11:14 AM

Umpa Duze wrote:For me, the moment one publishes and sells a book/DVD/article to the public, that information enters the public domain as I am referring to it.

It does most definitely not!
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Postby Jonathan Townsend » 12/24/11 11:49 AM

Umpa, are you equating offering an item for sale (description and/or props and/or script) with the act of publishing findings in the academic world?
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Postby Umpa Duze » 12/24/11 02:18 PM

Hi All,
As part of my other life I publish a variety of articles in journals. Currently, I am in the process of publishing a new approach to using qualitative and quantitative data from surveys to produce more valid interpretations. This is an invention. Recently, my students and I produced a handbook linking performance assessment with the new Common Core State Standards in education. This was a new and useful combination of material that helps teacher performance. I have argued for a completely transformed system of K-12 education that shifts from mass production models to quality production models. This is a theoretical and research based philosophy of education.

How does coming up with a new trick differ in character from coming up with a more effective form of measurement?

How does synthesizing the work from multiple published sources and using that work to create something of value differ from using published effects to create a new understanding about the underlying nature of a particular effect?

How does developing a new philosophy and narrative through which to examine education systems differ from the design of routines?

Again, people's work needs to be properly cited, but if we free up the scholarship we can advance much more quickly.
Cheers,
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Postby Tom Stone » 12/24/11 05:36 PM

You have a lot of opinions about works of which you've had no hand in their creation. A good starting point would be for you to actually create something yourself - and then you can talk about the scholary dissemination of your own work.

A new form of measurement would hardly change depending on who is holding the measuring instrument, and if it does, I'm rather confident that the academic world would abandon it pretty quick. In magic, the goal is to avoid being identical to each other (unless you're talking with a magic dealer, who probably prefer that everyone do their most recent seller). It is an artistic niche, and it deals with creating illusions through the means of dramatic and choreographical manipulations. It is not facts. In Miser's Dream, you do not actually make coins appear from the air, instead you present the dramatic visualisation of a fantasy. Had it been real, it would maybe have been a suitable topic for academic studies, open to all. But it isn't real, isn't facts.

Public Domain means that the copyright has expired. In strict terms, that entails that at least 50 years have to pass from the death of the creator, before the work becomes public domain. (in most countries, it is life + 70 years).

And yes, in practially all artistic fields, you are obliged to obtain explicit permission before including the works of others into your own work. Pick up any novel where a known poem or song lyric is included, and you will always find a note on the copyright page that permissions have been cleared. In a movie, when the characters watch a cartoon on TV, the filmmakers have always obtain permission to include the work.
Obviously, they don't do that when the work they include is in public domain (after at least life + 50 years have passed), and neither do we in magic.
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Postby Jonathan Townsend » 12/24/11 05:54 PM

I'm going to take a different tact than Tom on this issue. In a different universe where publishing in magic required vetting and peer review, citations and clear communication aimed at advancing the craft as an academic process it would likely be sensible and customary to cite what's in print and discuss what's novel. In our universe there's a proffered item of puzzling description aimed, for the most part, at the vain/clever rather than those who wish explore the latest refinements and advancements in scripts, props and techniques that have stood the test of time and performance. IMHO it's a different market with different objectives and transactional rules.

I have argued for a completely transformed system of K-12 education that shifts from mass production models to quality production models. This is a theoretical and research based philosophy of education.


Aside from the grammar problem in the second sentence there's a lurking presupposition about the objectives of the education that's being offered. Just for reference the three "R"s are reading, reasoning and rhetoric.

Has the trivium been replaced with trivia?
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Postby Q. Kumber » 12/24/11 06:18 PM

It's certainly been the tradition, especially in magic periodicals, to offer suggestions, improvements and advances in previously published work.

Just check the file of Apocalypse for example. Amongst the many original tricks published there, were many such improvements and inspirations. A study of Apocalypse could be equated with the magical equivalent of a university degree for the close-up worker, as would The Jinx for the mentalist.

And I imagine every contributor to both those magazines was thrilled to see their item appear, and happy add to their art, profession or hobby.

It's a different story for others to take those contributions and market them without permission.
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Postby Jonathan Townsend » 12/24/11 07:36 PM

Not so many publications had/have the longevity, community cooperation for vetting and the editorial discretion that's available in Apocalypse. Keeping the fully described material to what folks would be up for trying rather than an issue on "applications of the one-handed top palm as done from a double lift or small packet" which might get a comment at the back of the magazine likely kept the magazine accessible to the larger audience. There's even an issue that pretty much echos a Saturday gathering at the card table where an idea is introduced and explored (see the Tidal Wave issue).
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Postby Umpa Duze » 12/27/11 06:51 PM

Hi All,
Well, first thanks to Richard for his help with grammar. Hopefully, you will not get stuck there.

Tom, I agree completely that the artistic rendering of an effect is both personal and owned. However, I disagree that the ownership should extend to all aspects of the effect, mechanical and artistic.

Tom you write "A new form of measurement would hardly change depending on who is holding the measuring instrument, and if it does, I'm rather confident that the academic world would abandon it pretty quick." If what is published does not work, the field identifies the problem and moves on. This is precisely what I referring to. In magic the poor design of an effect can last indefinitely as was the case with the Cutting a Woman in Half effect Steinmeyer wrote about. I think you are misunderstanding my point in the last paragraph where you discuss the literal use of a significant piece of work such as a poem, or showing a TV show in a movie.

I would argue that there is an enormous amount of imitation, duplication, and innovation that occurs in other areas of art that is not regarding as stealing. I would also suggest that the distinction between what is real and what is presented as real is not useful. I do realize that those pesky coins did not just appear from the air. The mechanics are real, and can be improved by a community of scholars. I often introduce my new graduate students to research by telling them that their job is to contribute one tile to a mosaic that is being built by the scholars in the field. They must understand what has been done and what needs to be done so thoroughly that they know exactly where their contribution goes and how it helps the community move forward. This is what I am interested here.

Jonathan raises a good point when he writes that a different universe where publishing in magic required vetting and peer review, citations and clear communication" could advance the craft. After a thousand years or so, why are we unable to create and benefit from this type of process? Is the reason magic has not developed more fully into a respected art form because our literature focuses on vain/clever rather than on moving the field forward?

I do understand the rules of this market, but I wonder if those rules were more appropriate in an earlier age. And Tom, I have published a magic book only to find that a Chinese company was offering it online for a fraction of the retail price. That was a bummer, but is not relevant to this question. This is not about who has the most to lose, it is about whether we all might gain collectively by taking the scholarship in the field to a different level.
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Postby Edward Pungot » 12/27/11 10:23 PM

The only thing that comes to my mind after reading this thread and allowing it to marinate for a while is to start your own magic journal and solicit magicians in the magic community who have the experience writing academic papers. Run with it and see what happens. Along with contributions from allied arts and sciences, those who come to mind are Prof. Richard Wiseman, Dr. Larry Haas, Prof. Robert Neale, et al. Since more of the general magic community are college educated, initial publications could serve as a template to future issues. That's all I have on this. But I get the sense that forums such as these, along with Genii Magazine and magic conventions serve this function of edification.
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Postby Umpa Duze » 12/28/11 12:16 AM

Hi Edward,
I am not sure it is helpful to narrow this to writing academic papers. I was not proposing that we create a new academic field. I am just wondering whether the restrictive mores of the magic world do us more harm than good. Would it be better to adopt the more common notion that publishing material is in essence giving it to the community to build, review and comment on?
Cheers,
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Postby Jonathan Townsend » 12/28/11 12:26 AM

Where to begin on that approach Umpa? The market in magic offers props, scripts(+personalized blocking/handling) for dealer items, dealer items with barebones instructions, journals with instruction on novel techniques and refinements of existing techniques (look at the history of Joe Ovette's sleight) that were developed as part of a dealer item by the inventor. The market conflates the notions of secret, base methodology, sample props for performance and detailed understanding of the principles used and their application. Lots of spaghetti to untangle in order to find the published/sold provenance of any specific meatball on the plate so to speak.
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Postby Edward Pungot » 12/28/11 12:34 AM

The sense I get in magic (and Tom has already touched upon this) in purchasing "secrets" from another performer, be it through books or oral or whatever, is a mutual agreement that those ideas remain the sole property of the creator. By purchasing their product, you are entitled to privately perform and/or discuss and tinker on your own, what the creator has given you. In the public sphere, such activities are off-limits until written permission has been attained when dealing with the dissemination of those ideas to a larger audience. I think this is as it should be. I think "the classics" are there for precisely the sort of exercise you are proposing, since such routines inherently contain all that one needs to learn about constructing and performing a well thought out piece. The end-goal, in my opinion, for a magician, is to eventually think and create for oneself one's own creations. It's good to examine the past performers and current favorites, but eventually we all have to go our separate ways when it comes to being a true performer.
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Postby Ted M » 12/28/11 01:18 AM

Umpa, if one considers the differences in the material bases of academics and magicians, it may help illuminate the differences in the cultural superstructures atop them.

Academics are supported by an institution, have the comfort of a salary, and gain culturally (via prestige) and materially (by career advancement) by engaging in publishable discourse.

Magicians are generally self-employed, are paid gig to gig, and in many ways they perform novelty acts, with their degree of novelty related in some way to their degree of marketability. When magicians publish, they make their novel inventions available to their market competition. They generally gain some prestige and a little cash from this, but at sacrifice of their closely-guarded novelty, which some involved in this thread clearly view as a significant threat to their own economic well-being.

Dai Vernon behaved somewhat like an academic -- he analyzed and refined others' work, and shared his analysis (although those with whom he shared often did not widely distribute that work.) I am eager to read volume 2 of David Ben's biography of Vernon to understand his economic situation in his California years, but my vague understanding is that he was financially supported my means other than performing; he effectively had the institutional backing of the Magic Castle; and the Castle and various publications, including Genii, served as his forums for discourse. It seems to me that his economic situation somewhat mirrored that of academia, and so may have enabled him to share his work more freely than many others in the field feel they are able to do.
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Postby Tom Stone » 12/28/11 01:48 AM

Umpa Duze wrote:Tom, I agree completely that the artistic rendering of an effect is both personal and owned. However, I disagree that the ownership should extend to all aspects of the effect, mechanical and artistic.

Well, you are obviously free to disagree, but that doesn't change anything. Ownership does extend to all specific aspects of the effect in drama and choreography.
The mechanical aspects are trickier though, but fortunately most props does not work themselves - most of them require the interaction of structured human movements to produce the specific magical effect, and as soon as the human movements comes into the picture we are under the heading Choreography again.
If what is published does not work, the field identifies the problem and moves on. This is precisely what I referring to. In magic the poor design of an effect can last indefinitely as was the case with the Cutting a Woman in Half effect Steinmeyer wrote about.


First of all, P.T Selbit's specific methods belonged to him, and no other person than him had any business describing it, unless permission had been granted.
However, there would be no problem to make an abstraction of the plot: "To saw a person in half" and then work out the specifics along a significantly different path - as Goldin did with his sawing. Of course, he failed on the part where he should have gotten permission for derivative work, but that was not contextualized back then and was more an ethical overstep.

A lot of people made sure that evolution occurred. Zati Sungur, Alan Wakeling, Les Arnold, Jonathan Pendragon and others.
Some other people came up with ideas that didn't work, and some of them decided to publish it as if it was realized work. Like in Method C in Greater Magic. And I can not imagine anyone knowing the craft looking at it and thinking it would be a good idea, or even work at all. Method C is not an academic problem, rather, the problem is people rushing to print before the work has been properly realized, motivation being fame, profit or anything except the actual art at hand.
I have never assumed Method C was workable, and neither has anyone else that cares about the craft.
The field did recognize the flawed design and moved on, and I can't find anything that support your hypothesis that it didn't.
That it has been republished over and over has nothing to do with magic, as the rehashing has been done by people who doesn't care whether it works or not. This is, and has always been, common knowledge among anyone who can see and read (I mean, come on, the person becomes half a meter shorter when he goes into the box).
The real news and huge surprise in Steinmeyer's book isn't that Method C doesn't work, but that it was Walter Gibson that was responsible for it (my guess is that he took inspiration from Horace Goldin's Buzz saw illusion).

I think you are misunderstanding my point in the last paragraph where you discuss the literal use of a significant piece of work such as a poem, or showing a TV show in a movie.


Nope. You suggested that a work becomes Public Domain the instant it is published. You also claimed that you knew no other fields outside magic where you need permission to make other creators' work public. So I gave a couple of examples that I'm sure that you have noticed to refute your claim - hence, your claim was not serious. You do know other fields outside magic where permissions are important!

I would also suggest that the distinction between what is real and what is presented as real is not useful.


It is not only useful, but essential. We present fiction. Fiction is dramatic works. Hence covered by copyright.
Our fiction is realized through structured overt and covert human movements - which is choreography. Also covered by copyright.

I do realize that those pesky coins did not just appear from the air. The mechanics are real, and can be improved by a community of scholars.

Which mechanics? If you refer to Automatons that perform magic by themselves, without the additional requirement of human movements, then yes; the situation regarding I.P. is very unclear.
They must understand what has been done and what needs to be done so thoroughly that they know exactly where their contribution goes and how it helps the community move forward. This is what I am interested here.

If the goal is to help the "community" to move forward, there are a lot of simpler things that can be done, that will give more immediate effects. Just tell people: "Don't publish crp!" and "Don't rush to print until you know for certain that the item actually work" - and that alone will stop things like Method C from being published.
And Tom, I have published a magic book only to find that a Chinese company was offering it online for a fraction of the retail price. That was a bummer...

Why a "bummer"? Did you forget that your opinion is that all works are in Public Domain as soon as it is published, and therefore free for anyone to republish?
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Postby Tom Stone » 12/28/11 01:51 AM

Umpa Duze wrote:Would it be better to adopt the more common notion that publishing material is in essence giving it to the community to build, review and comment on?

Define "the community".
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Postby Umpa Duze » 12/28/11 06:54 PM

Thanks Tom for all of the effort you are putting into this. Your comments are helpful in understanding your perspective. You seem quite confident in your views and I respect your opinion on these things. My goal was not to entice anyone into an argument, only to explore this rather unique characteristic of the magic world.

I think Ted may have laid his finger on what makes magic different when he writes that the authors generally gain some prestige and a little cash from this, but at sacrifice of their closely-guarded novelty, which some involved in this thread clearly view as a significant threat to their own economic well-being. I just wonder how many additional secrets would have been discovered without the current unique restrictions in the use of the literature. Perhaps our fear is what is holding us back from much greater success?
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Postby Tom Stone » 12/28/11 08:41 PM

Umpa Duze wrote:...only to explore this rather unique characteristic of the magic world.

Trolling?
You've been shown examples that it isn't unique for the magic world - if anything, we are far behind other fields. Even your main example was wrong, so there seems to be no facts that support your hypothesis. If your vision of academic scholarship entail persistance of flawed arguments, I can not see what the benefits would be for anyone.

And please define "the community". Who are they and what is the nature of their contributions? I really want to know.
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Postby Jonathan Townsend » 12/28/11 09:38 PM

Okay - maybe we should burn the straw man. Folks can ask for what they desire directly.

Umpa Duze wrote:...
I think Ted may have laid his finger on what makes magic different when he writes that the authors generally gain some prestige and a little cash from this, but at sacrifice of their closely-guarded novelty, which some involved in this thread clearly view as a significant threat to their own economic well-being. I just wonder how many additional secrets would have been discovered without the current unique restrictions in the use of the literature. Perhaps our fear is what is holding us back from much greater success?


Filling in some deletions and challenging some generalizations...:
I think Ted may have laid his finger on what makes magic different (than what other field or area?) when he writes that the authors generally gain some prestige and a little cash from this, but at sacrifice of their closely-guarded novelty, which some involved in this thread clearly view as a significant threat to their own economic well-being. I just wonder how many additional secrets (whose 'secrets'?) would have been discovered (by who and where and how would anyone else know?) without the current unique restrictions in the use of the literature (now you've gotten annoying - "the literature"? We freely cite and often re-describe items with attribution in journals, books and even products in this field.). Perhaps our (who is "our" or "us" when you write as if you know the thoughts of others and can speak for others) fear is what is holding us back from much greater success (plenty of folks succeed with an engaging personality and a few tricks right out of Robert-Houdin's book or from Stars of Magic - so what do you mean by succeed?)

IMHO the dialog would go more smoothly if folks were forthright about their perspectives.
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Postby Umpa Duze » 12/29/11 01:11 AM

I am not trying to suggest that I speak for anyone but myself and my impressions. Maybe my whole thesis is wrong. Reading Jim's book just made me wonder.

There are many ideas that are as unworkable as Method C published/republished in all fields. For example, we are still hearing about the wonders of trickle-down economics. So perhaps this is less to do with magic than it seemed to me originally.

I found the following helpful as it relates to choreographic copyright law. It is a little old, but it spoke to some of the issues discussed here. Specifically the exclusions raise questions for our discussion.

http://www.csulb.edu/~jvancamp/copyrigh.html


Jonathan, as an experienced publisher would you think an annual (perhaps digital) would be economically viable if it were filled with articles that had been peer reviewed by top professionals. Given the healthy growth in the theoretical literature, perhaps a mixture of theory, practice, and performance advice? The annual could be sold with the profits used to provide lectures at an annual convention given by the successful authors; perhaps in collaboration with IBM or SAM?
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Postby Bill Mullins » 12/29/11 03:38 PM

Umpa Duze wrote: I found the following helpful as it relates to choreographic copyright law. It is a little old, but it spoke to some of the issues discussed here. Specifically the exclusions raise questions for our discussion.

http://www.csulb.edu/~jvancamp/copyrigh.html


IANAL, but the analysis in the link leads me to believe that the choreography protections in copyright law would not protect magic tricks because:
1. They are not dance;
2. Many magic moves have functional purposes (move a card secretly), rather than existing solely for the esthetic pleasures of the audience.
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Postby Tom Stone » 12/29/11 06:45 PM

Bill Mullins wrote:...but the analysis in the link leads me to believe that the choreography protections in copyright law would not protect magic tricks because:
1. They are not dance;
2. Many magic moves have functional purposes (move a card secretly), rather than existing solely for the esthetic pleasures of the audience.


1. Neither are a lot of choreographical pieces in performance art. Van Camp's text is slightly out of date, but even there it is said: "I would suggest, in conclusion, that any work submitted as a "choreographic work" prima facie should be considered as such if it centrally involves the design of human movement..."

Now, as an experiment, take 50 effects that has been created since, let's say, the 1950's. A mix of card effects, close-up, parlor and stage. From each effect, remove everything can be described as "design of human movement" both overt and covert. In average, does anything remain of the works? Does the fiction presented in the works still occur even when no human hands are involved? If not, it is pretty fair to assume that the works centrally involves human movement. So what about design?

Well, take the same 50 pieces and replace all movements in each piece with the same generic movement, let's say one Elmsley Count and one Shuttle pass. Does the fiction presented for example in "Floating Rose", "Healed & Sealed", "Solid Deception", "Tommy Wonder's Cups & Balls" and "Matrix" still remain? If not, it is fair to assume that the design of the human movements are pretty important for the works as well.

Last test: Take the same 50 pieces. Keep the necessary movements for each piece, but rearrange them in alphabetical order (Movements without names can be moved to a random order at the end). Like, in "Twisting the Aces", do all the Elmsley Counts before the initial Secret Reversal of two cards. Or in "Origami", try to Fold down the cube before the assistant pull up her knees. Does the presented fiction in each piece remain unchanged? If not, it would seem like the design of the human movements in each piece are not only central but essential.

2. Just like with moves in dance, where many steps have the functional purpose to move someone from A to B.
Whether it is "existing solely for the esthetic pleasures of the audience" is an irrelevant notion. Copyright does not care about values like "estetic" or "pleasurable". A painting can be ugly and unpleasant. A book can be a horrible read. A film can have so much jumps that it induces motion sickness.
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Postby Jonathan Townsend » 12/29/11 11:26 PM

Umpa Duze wrote:...
Jonathan, as an experienced publisher would you...


Umpa, unless you are attempting sarcasm - you might do better to direct that request to Richard who is an experience publisher and might be up for offering some insight and advice if asked.
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Postby Jonathan Townsend » 12/29/11 11:37 PM

Bill Mullins wrote:
Umpa Duze wrote: I found the following helpful as it relates to choreographic copyright law. It is a little old, but it spoke to some of the issues discussed here. Specifically the exclusions raise questions for our discussion.

http://www.csulb.edu/~jvancamp/copyrigh.html


IANAL, but the analysis in the link leads me to believe that the choreography protections in copyright law would not protect magic tricks because:
1. They are not dance;
2. Many magic moves have functional purposes (move a card secretly), rather than existing solely for the esthetic pleasures of the audience.


Bill,

As regards point 1 - look at any routine done to music - does that not constitute choreographed action and therefore fit the definition?

As regards point 2 - it's the magical effects which are the out come of those actions both secret and overt which are our craft, and so one could argue that sleights, even those which outwardly appear to be nothing more than mundane actions to an audience are just as much works of specific design directed at the production of a work.
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Postby Umpa Duze » 12/30/11 01:38 AM

Hi Jonathan, no sarcasm intended, for some reason I had it in mind that you also had a publishing background.
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Postby Umpa Duze » 12/30/11 01:45 AM

This was the part I wondered about at the link:
C. Expression vs. Idea


Another problem which remains difficult under the 1976 Copyright Law is application of the distinction between "expression"and "idea" to the category of "choreographic works." Protection is excluded by the statute for any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. (62)

Another obvious exclusion, as a "procedure" or system," would be any element of a standard dance vocabulary, such as a plie or a pirouette. (66) Less obvious, but almost certainly also excluded, would be the development of a strikingly novel step (such as the split tour jete made famous by Mikhail Baryshnikov or Maya Plisetskaya's kick-jete, stabbing the air with one leg and bringing her head back to her other foot (67) ) or novel movement vocabularies (such as that of Martha Graham). These would be excluded for the same reason that a new atonal musical scale or a new genre, such as jazz music, would be excluded. (68) Since many "steps" actually involve several "building blocks" (e.g., preparation-turn-landing), the primary problem here is drawing a distinction between a new step, excluded from protection, and an original combination of steps, probably eligible for protection as part of a complete choreographic work. Dance critics and historians will play a vital role in sorting out these subtle distinctions.
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Postby Bill Mullins » 12/30/11 02:12 AM

Tom, Jon -- I think you both are making the point as we (magicians) would like it to be seen, and not as lawmakers/lawyers/judges would interpret the statute.

When we "choreograph" the moves in a trick, we are using the word in a specialized way, and not with the common meaning of the word. Even the Oxford English Dictionary (the most comprehensive and authoritative that I'm familiar with) doesn't recognize any meanings of "choreograph", "choreography", "choreographer", etc. that aren't specifically related to, and defined in terms of, dance and ballet. When trying to resolve ambiguities in a law, judges will tend to figure out what the writers of the law meant. There is nothing in the statute, or in the analysis linked, that indicates that they meant anything other than dance moves.

Tom Stone wrote:Van Camp's text is slightly out of date, but even there it is said: "I would suggest, in conclusion, that any work submitted as a "choreographic work" prima facie should be considered as such if it centrally involves the design of human movement..."

But Van Camp has already defined "choreographic work" as being specifically tied to dance and ballet -- see her paragraph that includes footnotes 15-18. If she is being expansive, it is only because she does not want to limit the definition of dance; not that she thinks "choreography" should mean any directed set of movements, regardless of artistic or functional purpose.

And to play devil's advocate, I would argue that magic tricks centrally involve deception, and human movement is only incidental to that end. The deception may require a gimmick, a prop, black art, misdirection, a stooge, mental agility, or a sleight. Sam Loyd's "Get off the Earth" requires a human movement, yes, but that movement is so lacking in creativity and originality that it can't be protected "choreography". No one would argue that the central element of the illusion is the choreography of the hand movements (such as it is) required to rotate the inner disc. The creative design that should be protected is the graphic imagery. Likewise, with Harbin's "Zig Zag Girl", the creative element that is central to the design of the illusion is not the human movement of the performer and assistant (does the girl enter from stage left? does she step rhythmically to accompanying music? does the performer lead her into the box? does she wave a handkerchief? does she stand with her hand on her hip to emphasize her width? and a thousand other artistic decisions a good magician may make as he "choreographs" the performance), but the mechanical and graphic design of the box itself.

Tom Stone wrote:Just like with moves in dance, where many steps have the functional purpose to move someone from A to B.
Whether it is "existing solely for the esthetic pleasures of the audience" is an irrelevant notion. Copyright does not care about values like "estetic" or "pleasurable".


I distinguished between "esthetic" and "functional" based on this portion of the law:
17 U.S.C. 102(b) "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery . . ."
The functional moves in a trick fall, I think, into the categories of procedures, processes, and methods of operation.
And I think this exclusion makes moot much of your thought-experiment about 50 tricks. You are showing that the tricks fall apart when the functional part of the procedure is changed, but that procedure can't be protected by copyright anyway.

Again, I don't disagree that what you are arguing for is a laudable goal. It's truly unfortunate that the law doesn't provide the art/craft of magic with a simple way of protecting the intellectual and artistic creativity of its performers and inventors. I just don't agree that the choreography provisions of the copyright law are relevant to magic (except to the extent that actual dance in a routine may be protected).

But it's all an exercise in frustration anyway, since the costs of bringing lawsuits far exceeds what could be gained by winning even if the law specifically did protect magic acts.

Townsend wrote:look at any routine done to music - does that not constitute choreographed action and therefore fit the definition?
See above, not necessarily (probably not).

[edit: Umpa's last post appeared while I was writing this -- sorry if it looks like I'm covering the same ground]
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Postby Tom Stone » 12/30/11 07:30 AM

Bill Mullins wrote:Tom, Jon -- I think you both are making the point as we (magicians) would like it to be seen, and not as lawmakers/lawyers/judges would interpret the statute.

You are aware that the exact same thing could be said about your own arguments?
A very large percentage of magicians are opposed to the idea that a creator should have any rights at all to his works, as they feel that they have some kind of collective ownership to the works of others. And can become quite upset over any suggestion that might limit their free trade of "secrets" at conventions and club meetings.
The first argument usually is "magic tricks can't be copyrighted". The second argument is usually an attempt to confuse matters by using terms from patent law which doesn't apply. And the final one is usually "this is just opinions anyway, so until there is a court ruling that forces us to think otherwise, let's all continue to promote the idea that no creators have any rights to their work." (paraphrased).

Well, there are more in the law that support the idea that creations in our field is protected by copyright, than statements that oppose the idea. The recent Raphael vs. Hans Klok case should be an indicator to where things are going.
And if a properly(!) prepared case should lose in court, it would have severe negative effect on the copyright situation for the more established arts, and might possible be used to overturn former rulings. Magic is not the only art that can be defined as having deception as a central theme...
I distinguished between "esthetic" and "functional" based on this portion of the law:
17 U.S.C. 102(b) "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery . . ."

Yes, and why are those things excluded from copyright? Because those things are covered by patent law.
The functional moves in a trick fall, I think, into the categories of procedures, processes, and methods of operation.

If you would go to the patent office with a new revolutionary and original sleight-of-hand routine with the intention to get it patented as a procedure, process or method of operation, you would quickly find that it wouldn't be accepted as such, and that your new creation wouldn't be eligible for a patent.
What you name "functional moves" are not functional moves. If you could, via finger manipulations, actually extract currency from the air, then it would be something that is functional as a procedure, process or method of operation, and a patent would easily be granted. But something that only present a fictional reality of being able to pluck money from the air? That's drama - hence covered by copyright for dramatic works. And what do we use primarily to realize our dramatic works? Sleight of hand. Structured human movements.

Using terms from patent law does not work in this context, because there are absolutely no indications that patent law would cover a sleight of hand creation.
And I think this exclusion makes moot much of your thought-experiment about 50 tricks. You are showing that the tricks fall apart when the functional part of the procedure is changed, but that procedure can't be protected by copyright anyway.


You are still using the wrong definitions of words from patent law. As an example:
You can buy music sheets with tabulatur notation - that is a step-by-step description over how to move and place the fingers on the instrument, resulting in a song being played. This is functional moves, in the same sense you mean that the moves in a sleight of hand creation are functional. By logical extension, following your arguments, that would mean that the music on those sheets are exempt from copyright, and can be used freely without bothering with ASCAP and rights. Unless the tune has been patented, of course...
It doesn't work like that. While the tabulature notation system itself might have been eligible for a patent, the works that have been expressed through it are not covered by patent law, but copyright.
I just don't agree that the choreography provisions of the copyright law are relevant to magic (except to the extent that actual dance in a routine may be protected).


You do know that there exist a number of choreographical works that doesn't contain any dancing, but which are designed with only various structured movements? Dance does not seem to be a requirement for choreography.
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Postby Umpa Duze » 12/31/11 01:18 AM

Hi All,
Here is a link to the story of Raphael vs. Hans Klok

http://www.futureofcopyright.com/home/b ... tines.html


Below is a link to a site comparing patents and copyright law. Here is an outtake.

The Supreme Court, in the 1879 case Baker v. Selden, {FN20: 101 U.S. 99 (1879)} stated:

The difference between the two things;patent and copyright, may be illustrated by reference to the subjects just enumerated. Take the case of medicines. Certain mixtures are found to be of great value in the healing art. If the discoverer writes and publishes a book on the subject (as regular physicians generally do), he gains no exclusive right to the manufacture and sale of the medicine; he gives that to the public. If he desires to acquire such exclusive right, he must obtain a patent for the mixture as a new art, manufacture, or composition of matter. He may copyright his book, if he pleases; but that only secures to him the exclusive right of printing and publishing his book.
Cheers,
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Postby Tom Stone » 12/31/11 04:00 AM

1879? Is there nothing more recent than a 133 year old case? :)

Sleight of hand creations can not be patented. It is stated in explicit terms that:
Processes done entirely by human motor coordination [can not be patented]
http://web.utk.edu/~wrobinso/534_lec_intell.html

And regarding "methods":
Not all methods, in the dictionary sense, are methods for purposes of United States patent law.
http://en.wikipedia.org/wiki/Method_%28patent%29
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Postby Umpa Duze » 12/31/11 05:12 AM

Which leaves us back where we started. The argument that magic mechanics (not boxes but moves etc.) are either definitely copyrightable or patentable seems generally unsupported from my reading of the materials. Indeed the above references seem to suggest just the opposite when methods are sold in published form. It also seems to me that the distinction between the creation of a new step and the design of a sequence of actions is one of those gray areas without an obvious answer. Is any movement completely independent of other movements?

Tom, I am not a patent attorney, but typically older cases are cited because they represent foundational decisions (precedents) which have guided more recent law. If you have a different reference, I would be happy to read it.
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Postby Magic Newswire » 12/31/11 12:29 PM

John Gaughan has some interesting thoughts on this which he shared in my chat with him. http://bit.ly/MNWGaughan
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Postby Tom Stone » 12/31/11 01:46 PM

Umpa Duze wrote:Which leaves us back where we started.

No, it does not leave us back where we started. Have you not read anything in this thread?

-Your assumption that material in all fields is considered public domain the instant it is published has been refuted.
-It has been shown that you misunderstood a revelation in Steinmeyer's book. The revelation wasn't that the third sawing in Greater Magic doesn't work, but that the author of the pipedream was Walter Gibson.
-It has been suggested that slight of hand creations are covered by patent law, which has been shown wrong since it is expressly stated in patent law that slight of hand is excluded. (Both copyright and patent law include lists of things that are not covered by those two I.P. systems. Sleight of hand is excluded from patent but not from copyright).
...And so on. We are most definitely not back at the starting point.

I'm still curious over what you mean with "the community", what your definition of that group is. Who are they?
I wonder, because I can not remember that anyone from "the community" was present when I created any of my work. I can't recall that "the community" financed, was present or contributed to my development work. I've even looked under the bed for them. Therefore I got surprised over your suggestion that "the community" has some kind of automatic right (surpassing my own) to works that they have had no part in conceiving.
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Postby Ted M » 12/31/11 02:07 PM

I think this topic got off track by loose usage of the term "public domain."

Umpa was trying to talk about magicians' general reluctance to "use published source material, properly cited, to make, build on or challenge ideas."

Umpa used the term "public domain" in this sentence: "To my knowledge, nowhere beyond the world of magic is it required to get someones permission to present work that is already in the public domain."

Jonathan Townsend and Tom Stone focused very narrowly on the specific term "public domain" as an assertion by Umpa that published magical writings could be freely republished by someone else, since "public domain" is a legal term in intellectual property law for material unprotected by copyright or patent.

This thread quickly devolved into various non-lawyers' views of copyright, which seems way off track.

Papers written by academics are protected by copyright, and yet others are nevertheless able to collectively analyze, publicly discuss, sift, winnow and build on the ideas expressed within them, resulting in faster progress and development in the field.

Umpa asks why this does not seem to be the case in magician culture.

Yes?
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Postby Bill Mullins » 12/31/11 04:15 PM

Umpa Duze wrote: To my knowledge, nowhere beyond the world of magic is it required to get someones permission to present work that is already in the public domain.


Is this even a true premise? Ortiz's Annotated Erdnase and Giobbi's Card College both do exactly what I think Umpa is saying may not be done.
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