The Genii Forum

those are some hard hitting allegations. But in the defence of those cited, without written contracts / documentation it is very hard for them to substantiate their claims ...

Magic dealers acting unethically!? What a surprise (insert appropriate punctuation mark for sarcasm here).

Think Charlene Wheatley, Chop Chop's widow, and how she didn't get squat from the myriad manufacturer's of the Chop Cup that blossomed after Al died.

and people are suprised as to why pirates are abundant in the magic industry.

If we cannot constrain or own bretheren then who is to say we should constrain our non-bretheren?

Sad, simply sad.

In our opinion, oral agreements become void if one of the persons involved is no longer alive.

What if one of the parties becomes mute?

Seriously, is there a court of law anywhere that would endorse this theory?

Losander's side seems to be here: http://www.losander.com/Conflict.html
One doesn't know what to think...

Denis

Losander's notice seem consistent with what I heard from both him and Tommy after the arrangement for "Sphere" was worked out.

Losander's does seem to be the most reasonable explanation of the two.

Having seen how "the estate" has been handled so far, I must side with Losander on this issue. I will believe him over what is coming from "the estate".
Jim

I don't wish to derail this thread, but it brings up something I have thought about and discussed with others without resolution.

At what point does an idea become available for use following a creator's death?

There are at least five related situations that I find interesting. I truly appreciate having so many thoughtful people on the genii forum who are passionate and informed. I am sincerely interested in what you guys think about these? (realizing that none of these are the situation in play above.)

1) Someone published an idea prior to their death. They never manufactured this idea for commercial release. Would it be permissible for a third part to manufacture and sell that item following their passing?

2) Someone published an idea prior to their death. At one time they manufactured this idea for commercial release, but it has been off the market for years. Would it be permissible for a third part to manufacture and sell that item following their passing?

3) Someone featured a performance piece in their act which required a piece of specialized equipment. This item was never sold commercially nor has it been explained in print. Would it be permissible for a third part to manufacture and sell that item following their passing?

4) Someone featured a performance piece in their act which required a piece of specialized equipment. This item was never sold commercially nor has it been explained in print. Would it be permissible for a third part to manufacture that item for their own personal use? Would it matter if it were a collectible that say on a shelf? A collectible that the magician demonstrated when people visited? Or a performance prop used in professional shows?

5) Someone featured a performance piece in their act. They passed away without ever publishing their effect. Would it be permissible for a third party to begin presenting that effect/routine? (Similar to the above, but without the requirement of manufactured equipment.)

What say you? Does the length of time matter? If I found the private notebooks of Magician X who lived in the 1850's, is that ok? Is it different from replicating an unpublished trick I saw performed by Fred Kaps or Bruce Cervon?

Brad Henderson

Ideas, provided they are "ownable," are the property of the heirs of the deceased.

Just because you own a Bruce Cervon notebook, for example, doesn't mean you own the right to reproduce it, or Bruce Cervon's name.

Anything prior to 1923 is public domain.

Sorry, Richard - my example only made things unclear.

I am NOT talking about reproducing a text. I am talking about performing material that has never been published.

I used the notebook example only to see if "time" was an issue.

If, for example, I somehow discovered the secret to a closely held trick performed by a magician in the 1800's, would there be any ethical issue with me performing it?

What if it was an unpublished trick from a magician who thrived in the 1950s?

What about the 1990's?

Is all of Fred Kaps' material now free for anyone to begin using, published or not? What if it were a homage to him? What about Cervon's? Should Ricky Jay pass away tomorrow, is his material off limits? What about 60 years from now?

Sorry for the confusion.

Brad

It's a gray area. Obviously, no one is going to complain if you are performing Robert-Houdin's material today. In fact, you are likely to be congratulated.

The only variable, then, is how many years after the person dies does this "congratulations" become brickbats.

It's not a simple answer for several reasons.

For example, Ricky Jay's work is recorded on video. It can be watched. No one is going to congratulate you for imitating him or performing his material if he dies tomorrow.

What about Al Goshman, who did a great act that is sorely missed. It, too, has been recorded, however I miss seeing it in person. Would someone have a problem if I presented his act, patter and all, if it suited me? What would his son think? Would his son have grounds for legal action?

Beats me.

Richard Kaufman wrote:Anything prior to 1923 is public domain.

The Disney empire is remarkable in protecting their properties. Mickey Mouse was created in 1928, and God help anyone foolish enough to try and finagle so much as a squeak without proper legal agreements.

Perhaps an examination of their methodology would be a starting point to protect future properties.

Richard Kaufman wrote:Ideas, provided they are "ownable," are the property of the heirs of the deceased. Anything prior to 1923 is public domain.

If the heirs do nothing with this material other than preventing other people from using it, at what point does it become free domain?

The heirs are never obligated to allow anyone to use it. Copyright protects for 75 years from the death of the author. But tricks are not copyrighted.

However it has been argued, assuming that there is something that can claim to be "owned" in the legal sense, that unless you protect what you own, you lose it.

There seems to be confusion between Effect, Presentation, and Method.

A Presentation can be copyrighted and protected like a small play if protection is specifically sought.

A Method can be patented provided it is not a natural process (as I understand it). A gimmick can be protected with a regular patent or a design patent, but an Effect - what the audience thinks they see - cannot be protected.

If, to use Brad's example, you learn of an old magician's effect and you figure out your own way of doing it and develop a personal presentation, then it's yours.

Anna Eva Fay probably invented the Dancing Handkerchief, itself an adaption of the Dancing Sailor described in Hoffmann. Kellar did it, as did Thurston. Blackstone Sr got it in the 1920s from John Grdina when the Blackstone show was delayed and he used his friends props. Harry, Jr did a fine job with the effect. Ralph Adams did his own awful version and David Copperfield had his own touch to the effect as did John Calvert and Mark Wilson. Who owned the trick?

The same could be said for the Vanishing Birdcage. Blackstone Sr was born the year it was invented. Dozens of other performers from De Kolta to Hartz to the Blackstones to Frakson to Servais Leroy to Bert Allerton to Walter Blaney have done the trick with great effect. No one owns it.

Then theres the generally accepted situation whereby one acquires performing rights by the purchase of a book describing the performers trick or act - Al Goshman being a good example of this - his book is a detailed account of his entire act. Anyone who took the time to work it up would be within their rights to perform it as Al did since he sold it in book form. Because is Al the presentation would be changed as needed.

Most magicians work is derivative. Often they start with what theyve seen and (the smart ones anyway) adapt the presentation to their own performing persona. The presentation grows and changes organically if the performer is paying attention.

Copying someones presentation such as the aforementioned Ricky Jay is foolish because Rickys work, like that of any successful professional, is idiosyncratic to the individual. The world doesnt need another Ricky Jay nor is there any demand for Ricky Jay clones.

There are several guys who sound just like Sinatra, but who cares?

David's post above clearly illustrates the need for studying magic history - at least concerning effects that you are contemplating adding to your act or marketing.

Another factor involved when considering what can be performed or marketed is the types of permission granted by the author of published works. To bring this thread closer to the topic... Tommy Wonder authorized purchasers of his "Books of Wonder" to make (or have made) effects from the books, as well as, to perform them. This would mean that if a book purchaser requested a builder to make something from the books, it would be authorized. It would not matter if said builder also built 1000 of the same effect as long as the buider was approached by the book owner and the builder did not initiate things with an offer to build the apparatus. The distinction here is important - the book owner must be the one seeking an item to be made.

Another factor to consider is that the majority of the "magic community" do not seem to care where the apparatus comes from. They just want it. This is a major contributing factor leading to the theft of magic items.

The truth is that none of the coveted items can really be protected from so-called unauthorized building, sales, or performance.

As for the Al Wheatley Chop Cup mentioned above, I suggest that concerned indiviuals consider doing some scholarly research on this item. Here's a hint : Mystic Seven. As one who has made his fair share of Chop Cups, such resarch is important to me.

In closing, I would mention that once an item has been redesigned or modified to improve functioning or to even change the function, it becomes a different item and is no longer the original item. It becomes a derivitive product or effect. Look at Joe Porper's new salt gimmick. This item is new and creates an effect different from the original salt trick. It is Joe's and should remain his but it has its roots firmly anchored in the classic salt gimmick. Should Tommy Wonder have tried to pay royalites to relatives of Joe Karson because "The Sphere" has its roots in Karson's Zombie. I'd say no as the whole thing has been redesigned. Losander's tables are not "The Sphere". The floating table is a different item and I feel that Tommy Wonder's estate has no rights at all regarding the tables. Their web page is a blatant attempt to intimidate Losander and as such is a disgrace.

Jim

Richard Kaufman wrote:But tricks are not copyrighted.

It depends... In US the situation might be messy and unclear. But in Sweden, and probably Europe, the situation is otherwise.
For example, my tricks are copyrighted in all countries that has signed the Berne convention, except possibly US who has just pretended to sign it.

Jim Riser wrote:In closing, I would mention that once an item has been redesigned or modified to improve functioning or to even change the function, it becomes a different item and is no longer the original item. It becomes a derivitive product or effect.

Generally speaking, it is alright to make new derivative pieces, provided that the item you build on is yours to use.

That is, making a derivative effect from an effect in a book you own is just fine.
But making a derivative effect from an unpublished item you've seen after sneaking backstage to secretly take a peek at, is probably less alright.

However, in US, that might be different, because of the messy take on copyright there.

Jim Riser wrote:. . .Another factor to consider is that the majority of the "magic community" do not seem to care where the apparatus comes from. They just want it. This is a major contributing factor leading to the theft of magic items. . .

IMHO, Mr. Riser's thoughtful post hits the nail squarely on the head.

Without a market for the stolen goods, there would be no ilicit profit to be had, and the theft would largely cease.

A root of this behavior is that many magicians are shamefully cheap.

Whether it's some "big names" sneaking into the Magic Live convention, selling bootleg copies of "The Reformation" or the Harbin book, or even photocopying readily available tomes, magicians often show a pathetic abundance of greed and lack of discernable ethics.

They want what they cannot (or will not) afford, and resort to thievery to satiate their avarice.

Are there grey areas?--sure. Are some just ignorant?--perhaps. However, many issues could be settled if folks would just stop and ask themselves: "If I were the creator, what behavior would I appreciate from those who respect me?"

IMHO, the first question should be "What is right?" instead of "What can I get away with?"

Tom Stone wrote:
<snip>
Generally speaking, it is alright to make new derivative pieces, provided that the item you build on is yours to use.

That is, making a derivative effect from an effect in a book you own is just fine.
But making a derivative effect from an unpublished item you've seen after sneaking backstage to secretly take a peek at, is probably less alright.
<snip>

Tom,
Sneaking backstage to take a peek at a prop is what I would term theft.

Likewise, if I were to take the idea we discussed a couple years ago and run with it, it would be theft. I consider the idea to be yours and would not do anything with the concept without working with you on the idea.

I am lucky to see and discuss many items/ideas with others. With this privilege comes the responsibility to protect these ideas of others by not using them without the originator's permission. Most ideas end up not going anywhere but are part of the development thought process. Because an idea can not be legally protected does not mean that it should not be respected. (sorry about the double negative)
Jim

The great problem is that actual protection by the law requires enforcement of the law. Unfortunately, the ability to get that now belongs almost exclusively to large corportations who can afford the investigative time and legal talent to protect themselves.

The piracy of magic is such small potatoes that law enforcement cannot spare the time and resources to enforce the law, making the idea of "protection" a complete mockery. Bringing a civil suit is massively expensive, you might prove your case and in the end there may be nothing to collect. The only "winners" are the lawyers.

I don't know what the story is with any negotiated items in the private business of Mr Lossander and Mr Wonder. Escalating a matter into the public and use of shame does not bode well for the reputations of either party.

The matter of technology used in our craft of guile is very "grey" in that any item can willfully and intentionally be deconstructed, reconstructed, 'independently discovered', offered as 'an homage' and still brought to market. Instead of justice we get excuses about "improvements" or "refinements" or claims of "public domain" for "classics".

I have no idea what's up with the matters between Mr Lossander and Tommy Wonder's brother but I do feel saddened that the matter could not be resolved in private.

:(

The legal aspects of this are far beyond my expertise, but it seems there is a level of greed, at least in some cases, on the part of surviving family members. I remember when my Grandmother died, she wasn't cold before the relatives were backing uhauls up to her door.

It's difficult for us to judge anything because we are not privy to whatever written documents may exist.

In the US, verbal contracts are generally binding in areas other than copyright (you cannot verbally assign a copyright).

If Tommy and Dirk had an agreement that was verbal, then it's beyond our knowing other than to trust Losander's word. This is one of the dangers of having a verbal agreement: if you die, your estate may go after the person you made the agreement with if there's no written documentation (whether you told them about it or not, depending upon their motive).

"A verbal contract isn't worth the paper it's written on."

-Samuel Goldwyn, Goldwyn's Law of Contracts

IMO, in making use of another magi's trick, routine or prop, it's not just a question of whether or not doing so is legal, but also a question of whether or not doing so is ethical. An even grayer area, to be sure, but one that's arguably of equal importance.

Case in point: About a month ago I wrote to Ron Wilson seeking permission to perform his signature Bagpipe Chinese sticks routine or my own version thereof. Happily, Ron not only gave me his blessing, he also provided me with a lot of helpful information and assistance regarding construction of the props. (Ron's set of sticks are now in the possession of, and being used by, Scottish cruise ship magician Scotty McLean.) He even sent me a DVD of a performance of the routine he gave at the Castle several years ago so I could get a better sense of the size and proportion of the sticks.

Did I legally need Ron's permission to do that? I don't believe that I did, but for me that's beside the point. I made it clear to Ron that without his permission I would not make the props and I would not perform the routine. And although he didn't ask me to do so, I also promised him that I would accord him proper credit whenever I make any references to "my" routine outside of performance situations. Again, for me that's simply the ethical thing to do. But I'm aware that the mileage of others may vary.

Donal, thank you for sharing that story. In the vast majority of the cases where I have asked magicians, illusion creators, etc. for advice and guidance, they have gone out of their ways to assist me. Some have sent me drawings; others have referred me to various references, some common and some obscure. In all cases, the information they shared with me was something that probably took them quite a while to acquire.

In the few cases where they have refused, it has been for legitimate business reasons. I accepted those reasons, thanked them for their time, and moved on.

I had nothing to offer them in return, other than my thanks. They just shared out of their generosity.

Donal Chayce wrote:IMO, in making use of another magi's trick, routine or prop, it's not just a question of whether or not doing so is legal, but also a question of whether or not doing so is ethical. An even grayer area, to be sure, but one that's arguably of equal importance.

Case in point: About a month ago I wrote to Ron Wilson seeking permission to perform his signature Bagpipe Chinese sticks routine or my own version thereof. Happily, Ron not only gave me his blessing, he also provided me with a lot of helpful information and assistance regarding construction of the props. (Ron's set of sticks are now in the possession of, and being used by, Scottish cruise ship magician Scotty McLean.) He even sent me a DVD of a performance of the routine he gave at the Castle several years ago so I could get a better sense of the size and proportion of the sticks.

Did I legally need Ron's permission to do that? I don't believe that I did, but for me that's beside the point. I made it clear to Ron that without his permission I would not make the props and I would not perform the routine. And although he didn't ask me to do so, I also promised him that I would accord him proper credit whenever I make any references to "my" routine outside of performance situations. Again, for me that's simply the ethical thing to do. But I'm aware that the mileage of others may vary.

Did Ron create the effect - the use of bagpipes as Chinese Sticks or was it the creation of someone else? If it's Ron's original routine then in my view you had to ask permission because it was his creation.

Then again, there is no indication in "The Uncanny Scot" that Ron had permission to explain in great detail what is acknowledged in the book as "Alex Elmsley's Torn and Restored Newspaper." I am not sufficiently familiar on the differences, if any, between the construction of Ron's Elmsley newspaper and the original to know if he changed it significantly.

Did Ron get permission from Alex to detail this? The 21 pages describing the effect and its construction don't say. I'm not making any accusations...just making an observation and asking a question.

I believe that Ron improved Alex's original Newspaper Tear, which is why we included it.

Thanks, that's what I was curious about.

Nice to see a happy ending to the matter.......

Good job, Tom.