Legal issues associated with magical

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Postby Kent Gunn » 04/24/12 05:08 PM

Michael Feldman, a Stanford law school grad and practicing attorney published this paper. After reading many people's conjectures and sometimes downright silly pontifications about the part our legal system plays in resolving magicians stealing one another's secrets, this cleared the air.

http://dl.dropbox.com/u/2203251/PebbleO ... eldman.pdf

If this topic interests you, download and read Michael's paper. It'll clear a bunch of stuff up and, since Michael's a lawyer it will cloud up some other issues.

KG
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Postby Donal Chayce » 04/24/12 05:30 PM

Thanks, Kent. I downloaded the papers; based on a quick skim of the contents, it looks to be an insightful analysis and an engaging read.
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Postby Bill Mullins » 04/25/12 02:28 AM

An interesting article. It has some problems, though.

The title page misspells Michael Weber's name (as does footnote 150 on p. 31), and page 23 misspells Norman Gilbreath's. Page 2 errs in the title of the most important book on sleight of hand with playing cards ever written (see footnote 11). "Musicians and authors, for instance, work with a versatile, but limited palate" that should be "palette". And the inventor of patented coin magic gimmicks is "Pressley", not "Presley", Guitar (see pp. 16, 17, and 19). But these are nitpicks, and are (perhaps) reflective more of poor editing than of the content of the article. Moving on to that . . .

He defines three categories of magic tricks that comprise the "vast majority" as those depending on apparatus, depending on sleight of hand, and tricks which are "self-working"; leaving out tricks that are wholly dependent on misdirection (card under glass, for example, or the Twisting Arm Illusion).

He alludes to other creative fields, such as fashion design, cooking and dance, in which intellectual property is protected less strongly than artists and creators may like, but omits the performance art which may be most closely related to conjuring in terms of intellectual property rights stand up comedy (see, for example, Dotan Oliar & Christopher Sprigman, Theres No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 VA. L. REV. 1787 (2008), online HERE).

Any discussion of Trade Secrets with respect to conjuring that fails to mention the Fitch-Kohler Holdout and its creators' use of contracts and Trade Secrets to protect it (so far, apparently, with success at least, I've never heard of anyone divulging the secrets) seems incomplete, at best. No other trick in recent memory has been so aggressively, yet publicly, discreet (although the Real Secrets Trick of the Month bears watching).

He discusses Utility Patents at some length, but ignores Design Patents. The overt, external design of tricks such as Harbin's original Zig Zag Girl may be equally important to the successful creation of illusion as the covert, internal mechanical workings.

He glosses over the the very real problem that when a magician's proprietary material is undisputedly stolen, the costs of pursuing grievances within the courts may far outweigh the actual losses, or what may be recovered. See, for example, the New York Times article (27 Sep 2006, p. E1) about Eric Walton lifting material from Ricky Jay's "52 Assistants" and "On the Stem" shows, in which Jay said, "I paid for a ticket and I sat through the show, and I would very much like my money and my material back."

Some magicians do not want to preserve secrecy or control the manufacture or use of a magical invention, but rather desire only credit for inventing it. The Statutory Invention Registration may be of use in such circumstances. Feldman does not discuss SIRs.
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Postby Bob Farmer » 04/25/12 08:47 AM

You need lots of money to sue anybody for anything. I prefer creative revenge. When Kenton Knepper marketed an inferior version of one of the tricks in my "Tsunami" manuscript without permission or credit, I simply gave away free copies of the trick he stole along with a humorous critique of his version.

When a magic dealer refused to pay me for a large order of tricks I'd sent him, I emailed him the local FBI office address and phone number and a definition of "mail fraud." Payment arrived promptly.
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Postby Michael Feldman » 04/25/12 11:44 AM

It's been a while since I've haunted this forum, but Bill has made this too tempting.

I know I know.... I am certainly falling into this temptation: http://xkcd.com/386/ ... but as they say, "pride cometh before the..." **crap, I just tripped as I was writing this**

Yes. I am a bad speller. Always have been. But, spelling errors aside (and I think we can all agree that the determining factor in whether the law protects magicians' intellectual property is not my ability to spell famous magicians' names or my mistake that it is "Artifice Ruse and Subterfuge" rather than "Art Ruse and Subterfuge"), I'd like to clarify a few things:

1. The three *general* categories of effects were intended to be just that: general. That said, card under glass *is* accomplished by sleight of hand, and I would argue so is arm twisting, as it is the choreography that you would be trying to protect and that is exactly the way I address it in the paper. (alternatively, Booyeah!)

2. I read many articles about stand up comedy its intellectual property in preparing for my paper. However, their complications are incredibly different from ours. We want to protect secrets. They don't. We are concerned with method. They aren't. Their artform is almost entirely verbal. The magicians' IP I discuss in my paper is almost entirely non-verbal. While I do discuss the possibility of protecting works as "dramatic works" that's not really the main point of the paper. (alternatively, thanks for trying)

3. The Fitch-Kohler holdout is patented. I spoke to the attorney who prosecuted the patent. And in any case, this is a paper about whether Intellectual Property law protects magic effects. Last time I checked, contract law is not Intellectual Property law. A different potential way to protect your work? Sure. But entirely beside the point of this paper. (alternatively, check yourself before you wreck yourself)

4. Design patents cover only the ornamental design of a functional article. And I have no idea how the ornamental design of your magic trick is part of its method. IN FACT, if it was part of the method at all, it would be ineligible for a design patent because it's part of the function and not the design. (alternatively, you think I wrote a 45 page paper on IP law and didn't realize design patents exist?)

5. I actually do talk about the cost of litigation briefly on pg. 7. Still, that's not about WHETHER IP law protects magic, just about whether it would be practical to litigate. (alternatively, sooooo not the point).

6. Some magicians don't want to preserve secrecy or control of their effects? Then this paper probably wouldn't be of much use to them anyway... seeing as that's the point of the paper. (alternatively, Booyah! (can I just use that again?))

Whew! ok, that's it. Honor defended.

I would love for this conversation to continue, and I do hope other people add to what I've said so far. I just ask that next time, could you phrase it as "here are some more issues you might be interested in that Michael seemed to decide were beyond the scope of his paper" and not "here's what's wrong with Michael's paper"? That way, all our honors can stay intact, and I don't have to use the word "Booyah" nearly as often.

I hope you liked the paper anyway. Peace out Genii forum, see you in another couple of years for my next post.
--
Michael Feldman
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Postby Bill Mullins » 04/25/12 05:30 PM

Michael -- your reference to the xkcd comic is particularly appropriate, as it was about 1:30 in the morning local time when I hit "send", and my wife had long been asleep.

Yes, comedians have different goals than magicians. But I think the issues in common are great, particularly when both communities depend on ostracism and other social norms for enforcement, rather than formal legal processes.

I did like the paper.
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