Should you still use material that you've sold?

[Jonathan Townsend]

@JohnH, IMHO that part i$ the ju$tification for the patent $ystem which offer$ it$ own protection$ for systems, (useful) discoveries and methods - and hence $erve$ the ve$ted intere$t$ to maintain both bureaucracie$. If you want that protection go over there and fill out those form$ and pay tho$e fee$ and hire legal representation to defend those matter$.

[JHostler]

Jon - My point was simply that sleights fall clearly into the exclusion reserved for “procedure, process, & method of operation.” These cannot be protected by copyright, and it would be darned difficult (and expensive) to patent something like a double-turnover. Of course, this has nothing to do with ethics or the original post(!)

[Jonathan Townsend]

@OP - custom has them as conveyed by the originator's item offered be it in book or prop.

@JH - I hold that sleights are choreography. Look at the Classic Palm to Classic Palm , Edge Grip to Edge Grip or Deep Backclip to Deep Backclip coin switches. That's specific action directed at a specific result and a specific appearance even from the audience view.

[Tom Stone]

"(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, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

Yes, of course! And if you move over to patent law, you'll see that those things can be covered by patent. And each term have a specific definition that is pretty strict. That is, if you say "In principle, I am against tipping" or "my method to avoid Jehovah's Witnesses is to hide behind the sofa", then neither statement have anything to do with copyright or patents. I hope that is clear.

Let's say that the idea of a prearranged stack was unknown in 1942 when Paul Curry created Out of this World. In a post-89 world, he would have copyright for the actual piece, but copyright would not protect the general idea of a prearranged stack, only his specific arrangement within the context of the whole piece. Other people would be allowed to come up with other prearrangements used within other pieces.
However, since the idea was new, Curry could then have chosen to patent the concept of a prearranged deck. That would have stopped all other arrangements, no memorized deck, no Further than That etc.
So, copyright for the specific expression of an idea (like OOTW), and patents for processes, principles, concepts, etc.

[Jonathan Townsend]

So all this because nobody patented the "mother in law" joke?

[JHostler]

Tom, with all due respect, you're all over the map here. First you compare Vernon's Triumph to "Waiting for Godot," insinuating that they're on equal footing both artistically and with regard to legal protection. Now you concede that while dramatic/narrative content of magic might be covered by copyright, the underlying methodology (particularly sleights) would require patent protection - a much more demanding undertaking, and nothing like choreography.

Your next step would be to consult with an actual IP attorney, whose head would explode at the proposition of patenting something like a pass (or even the displacement used in "Freedom Cuts"). It just ain't gonna happen.

[Tom Stone]

Now you concede that while dramatic/narrative content of magic might be covered by copyright, the underlying methodology (particularly sleights) would require patent protection

Huh? As far as I know, I have done nothing like that.

You brought in terminology from patent law, as if it had relevance within copyright. I refuted your claim, but gave one example on how it could possibly have been applied, in a made-up example because I could not find any real example.

If you bring irrelevant notions into the mix, then you simply have to accept the detours they create.

[Jonathan Townsend]

On patents; with respect to our creative types here, finding material that is not prior art in commerce is going to be difficult - even when somebody got the red snapper item patented recently.

On the copyright claim matter - Vernon's Triumph - the anecdote and choreography is a good challenge - provided somebody is willing to get the script, choreography and technical production concerns written up to claim as a work.

[JHostler]

You brought in terminology from patent law, as if it had relevance within copyright.

No, I didn't. I quoted from text concerning copyright.

I refuted your claim, but gave one example on how it could possibly have been applied, in a made-up example because I could not find any real example.

No, you refuted nothing. The quote was accurate, and I'm quite aware of the distinction between copyright and patent protection.

Bottom line: You have still not made a convincing argument that "magic" as a whole is generally protectable beyond what we already know and accept. Criticizing the U.S. legal system and devaluing the input/thought of non-professionals in this matter certainly hasn't aided your effort - though I appreciate your surprisingly revealing honesty.

Again, the shortest distance between two points is a straight line: what does your friendly neighbourhood IP attorney have to say? Theorizing will only take you so far.

[Bill Mullins]

However, the sleight itself is choreography and protected under subsection 4 and may not be reproduced in any form without permission.

Not true. Choreography was added to the list of copyrightable "things" in 1976, and is specifically about dance, dance steps, and dance step notation (for recording steps). We know this from the language of the statute, the legislative history (the hearings and reports that preceded the law), the common meaning of the word (choreography means the arrangement of steps in a dance – no more, no less), legal commentary, and the limited case law that has arisen since the passage of the law. It doesn't cover sleight of hand, juggling, shadowography, pattycake, string figures, cup stacking, pen spinning, or other performance arts involving the hands. It would be nice if it did, and maybe someday a well-funded lawyer will convince a judge that it should, but it does not.

Bill, the Elmsley Count is an excerpt from a dramatic, sligthly whimsical, sleight of hand presentation that the british magician Alex Elmsley made public in 1959, titled "The Four Card Trick".

The Elmsley Count is a "procedure, process, . . . method" for displaying three cards and hiding one while making it appear you have displayed four different ones. It is not copyrightable, despite the fact that Elmsley used it in his trick (which, as I keep saying, may not have been copyrightable as a performance – it depends). Your "Benson Burner" routine uses false transfers. Even though they are excerpts from a larger theatrical work, they aren't copyrightable in and of themselves.


And apropos of nothing at all, the May Genii reprints a piece from a 1991 Magic Man Examiner that uses the line, "Stop me before I sub reference again." The knowledgeable among you will recognize that line from Dennis Miller's late 1980s stand up material. [And I am specifically NOT accusing Kenner, Liwag or Klause of any malfeasance here. Just pointing out that minimal use of another's creative work -- in this case, a line -- can be harmless.]

[Tom Stone]

No, I didn't. I quoted from text concerning copyright.

The quote consisted of things that explicitly doesn't concern copyright, things from patent law. The quote itself even said it.

Bottom line: You have still not made a convincing argument that "magic" as a whole is generally protectable beyond what we already know and accept.

I don't need to make a "convincing argument". I've told you what it is, and it will remain what it is, regardless of what the sentiments about it might be. Things changed in 1989, and while you are free to remain oblivious about that, it did happen, and it is ongoing. If Google can't convince you about it, then I certainly can't either.

Criticizing the U.S. legal system and devaluing the input/thought of non-professionals in this matter certainly hasn't aided your effort - though I appreciate your surprisingly revealing honesty.

Why the plural? "non-professionals"? It should be singular.

[Ken Becker]

IMHO Triumph is not the best example as Vernon's script was not in the original publication, nor was the false shuffle process he used - which was published later on and not in the Stars of Magic book.

John,

Just curious? Are you referring to the spectator saying "How about letting me shuffle the deck?",etc., etc. If so, that is in the original manuscript of Stars of Magic copyrighted
in 1946. If not, then I am lost as to the reference.

Thanks,
Ken B.

[JHostler]

Why the plural? "non-professionals"? It should be singular.

OK, Tom - I'm done. You are either a deeply bitter man or in a particularly nasty mood. In either case, there's really no point in debating anything with you.

[Tom Stone]

The Elmsley Count is a "procedure, process, . . . method" for displaying three cards and hiding one while making it appear you have displayed four different ones.

But how difficult can this be? Why is it so important to bring back all weird exceptions, loopholes and special rules? Don't you want the clean slate, where the rules are so few and so simple that any performer know how his work is protected without spending a fortune on legal council?

You are talking about very specialized terms from patent law. Those words are not the same as the ones you use in daily speech. A false count isn't eligible for patent, and even if you somehow could argue that it did constitute a process, we have the additional exception that processes done by human motor coordination are explicitly exempt from patents. The reason is that it would be better suited under copyright - and by then the loops and hoops have brought us back to the starting point again.

What you are attempting can be done in any artistic field with the same result.
A theatre play is just words, one word after another. No single word is copyrightable, hence the play can't be copyrighted.
That painting, you can't copyright the pigments or the canvas, hence your painting can't be copyrighted.

Elmsley's Four Card Trick was created in England by Alex Elmsley. That can't be argued, right? The so called "Elmsley Count" is an excerpt from that piece, right? And this particular excerpt constitutes a major and significant part of his piece. That's also a fair description, right? What is said genrerally about excerpts within other performance arts? That would be a fairly good indicator.

[Tom Stone]

OK, Tom - I'm done. You are either a deeply bitter man or in a particularly nasty mood. In either case, there's really no point in debating anything with you.

Describing my work in disparaging terms was meant to cheer me up? Good to know.

[JHostler]

Describing my work in disparaging terms was meant to cheer me up? Good to know.

Never did. (I assume you're referring to Freedom Cuts, which was never disparaged - only used as an example of how difficult it is to identify sources with 100% accuracy.)

Goodbye, Tom.

[Tom Stone]

Never did. (I assume you're referring to Freedom Cuts, which was never disparaged - only used as an example of how difficult it is to identify sources with 100% accuracy.)

Wrong word. I meant "profession" or "artistic field", not "work".

[Jonathan Townsend]

Just curious? Are you referring to the spectator saying "How about letting me shuffle the deck?",etc., etc. If so, that is in the original manuscript of Stars of Magic copyrighted
in 1946. If not, then I am lost as to the reference. Thanks, Ken B.

Thanks Ken, I had forgotten it was there. I guess it's time to get find or buy another copy of that book. I hear Meir did a great job on the photos.

[Bill Mullins]

The Elmsley Count is a "procedure, process, . . . method" for displaying three cards and hiding one while making it appear you have displayed four different ones.

But how difficult can this be? Why is it so important to bring back all weird exceptions, loopholes and special rules? Don't you want the clean slate, where the rules are so few and so simple that any performer know how his work is protected without spending a fortune on legal council?

It's important because that is what the rules are. Copyright specifically excludes procedures. Sleights are procedures. QED, you can't copyright a sleight.

Further complicating the issue is a sleight is covert. Suppose that the story that I tell requires that I appear to deal the top card; in fact I am dealing the second card. Then the magic happens -- a transformation. How can I copyright a second deal as an element of a larger work, when in the larger work, it was the first card that was dealt?

The sleight is a "special effect". The illusion it creates can be a part of a larger copyrightable work, but the way that illusion is created can't be.

You are talking about very specialized terms from patent law.

No, I'm talking about things that are specifically excluded from copyright. The fact that patent law refers to them is not important.

A false count isn't eligible for patent,

Straw man. I'm not trying to claim it is patentable; I'm claiming it isn't copyrightable.

it would be better suited under copyright

Except that, being a procedure, it is excluded from copyright coverage.

Elmsley's Four Card Trick was created in England by Alex Elmsley. That can't be argued, right? The so called "Elmsley Count" is an excerpt from that piece, right?

This is where we diverge. The excerpt from the larger piece is the presentation of four blue backed cards. This is what the audience sees. The fact that the magician has 3 blue cards and one red one is unknown to the audience, as is the fact that the magician uses the Elmsley count to deceive them. From the audience's perspective, and within the "reality" of the story being told, the Elmsley count doesn't even exist. I could use a bank of half-rough cards to create the same transformation of a blue to red. I could muck in a new packet of 3 blue and 1 red, replacing the packet of 4 blue. I could use an acrobatic card to create the color change. I could use a Keplinger holdout to switch the card. From the audience's perspective it would be the same thing -- a blue card in a packet of 4 turns red.

It's a sleight, not a piece of story. It is a method for conveying an illusion. It is a procedure, that if followed correctly, allows the the magician to say something that isn't true. It's not copyrightable.

[Jonathan Townsend]

Normal people don't count cards that way. It's choreography, IMHO. It's a specific display action designed to communicate a sentiment within a formal structure. The magician carefully displays the cards in his hands.

[JHostler]

Jon - If a sleight designed to appear natural does not (i.e., it appears overly stylized or specially choreographed), then it is not being executed properly. Sleights are merely a means to an end; they do not constitute dramatic content and are in no way protectable through copyright. (Given the incredible difficulty of codifying loose hand motions, patent would also be a stretch.) You can confirm this with an IP attorney. Of course, one of those experts is likely lurking this very thread with a wide, bemused grin.

Paging Dr. Farmer... paging Dr. Farmer!

Again: "(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, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

[Tom Stone]

his is where we diverge. The excerpt from the larger piece is the presentation of four blue backed cards. This is what the audience sees. The fact that the magician has 3 blue cards and one red one is unknown to the audience, as is the fact that the magician uses the Elmsley count to deceive them. From the audience's perspective, and within the "reality" of the story being told, the Elmsley count doesn't even exist. I could use a bank of half-rough cards to create the same transformation of a blue to red. I could muck in a new packet of 3 blue and 1 red, replacing the packet of 4 blue. I could use an acrobatic card to create the color change. I could use a Keplinger holdout to switch the card. From the audience's perspective it would be the same thing -- a blue card in a packet of 4 turns red.

Why bring the audience into this discussion? They've only come into the picture after the piece has been realized and can be shown.
Likewise, why are you splitting the work up into imaginary constructs like that? "'Reality' of the story"? That's nothing that can be performed in isolation and still be the same work.
The work is what it is - how it will be percieved when it is made public is something else completely.

If you derive a new piece from Elmsley's Four Card Trick, and you chose to express the idea in a completely different way (via the sequences you described), then it is a different piece. Far more clunky and less elegant, but still a different piece.

Is the argument the following, or am I missing the point?

• If the work can be broken down into smaller components, and those components (individual letters, pigments, papers, single words, single sleights, single tones..) can't be copyrighted on their own - then the work as a whole can't be copyrighted either.

...If I'm misrepresenting your point, please correct me.

[Tom Stone]

Just to make it clear, these are the treaties that are in effect:
http://www.wipo.int/treaties/en/ShowRes ... ry_id=179C
I had assumed that the 1961 Rome Treaty (that clarifies performers' rights) would be present, and was somewhat surprised to find that it wasn't.
But TRIPS (1994) are. Introduced by US itself, and came into effect in August 2000. And TRIPS say: National exceptions to copyright are constrained by the Berne three-step test. That is:

Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form. It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works (a) in certain special cases, (b) provided that such reproduction does not conflict with a normal exploitation of the work and (c) does not unreasonably prejudice the legitimate interests of the author.

What are my legitimate interests as the author?

Let's say a person see me perform two of my pieces "Benson Burner" and "Mindatory!" (unpublished) on YouTube, and studies them in such detail that he eventually is able to exactly duplicate my two pieces. That's all right, obtaining knowledge like that is perfectly fine.

But then the person decides to make his knowledge public, by reproducing my work in his own performances without my permission.
After that, the person decides to teach my work in his own lectures, and eventually publishes it in a book and in a DVD, under his own name. Still without asking for permission, and without even mentioning me.
And finally, he is offered some money and teach it within a "masked magician" show on TV, and some newspapers republishes the significant parts the day after.

The tenets in the Berne treaty protect my artistic work from being exploited like that. My legitimate interests are taken care of.
But, it seems that the argument is that current national US copyright have exceptions that allow my work to be exploited in the manner described. Exceptions that say that I have no rights at all to my work?

Fortunately for me, there is TRIPS, that in no vague terms say that national exceptions are not allowed to unreasonably prejudice the legitimate interests of the author. My two pieces are still as protected within US as outside it.

[Tom Stone]

Sleights are merely a means to an end; they do not constitute dramatic content and are in no way protectable through copyright.

Look around you. Open some books. Watch some performances.
Sleights.. that's one of our main forms of expression. There is nothing "merely" about it.

Where a writer would use words, we use sleights.
The writer's work consist of words in a certain configuration, just like with our work and sleights.

Most basic sleights are old enough to be public domain. A lot of the modern sleights are derived from the public domain ones, and does not significatly differ enough to clear the threshold of originality, and can't therefore be covered by copyright when isolated on its own. But a small number of sleight do clear the threshold of originality (like Williamson's Striking Vanish), so it can't be considered an absolute rule that no sleights are covered by copyright.

[Chris Aguilar]

I look forward to seeing Tom one day prove his assertions in an American court of law.

Until then, we're stuck hearing him bloviate, cherry pick data, misrepresent (often in a very obtuse, arrogant, illogical and nasty manner) and fill various fora with his opinions passed off as fact.

And yes, his anti U.S. bias (not just concerning copyright law) can be clearly seen splashed across various magic forums and his Facebook page

Tom's a brilliant magical creator and a fine performer, but he's got a blind spot here (concerning U.S. Copyright law) the size of Texas.

Please don't harbor any illusions that he'll actually listen to any facts you might present to him on this subject. He truly does try to "win the internet" anytime this topic comes up.

[Jonathan Townsend]

US and copyright ... compare to China? Compare to reverse engineering and arguing for "obvious" status or "trivial composition" based upon the literature? The legal process is not exactly cost effective for the first few people who want to follow that path to protect their works.

Performing items that came from works/props you have sold to others... IMHO seems less than courteous.

[Bill Mullins]

Is the argument the following, or am I missing the point?

• If the work can be broken down into smaller components, and those components (individual letters, pigments, papers, single words, single sleights, single tones..) can't be copyrighted on their own - then the work as a whole can't be copyrighted either.

...If I'm misrepresenting your point, please correct me.

What I'm trying to say is:
1. Some pieces of magic are well developed enough that they are probably protected by copyright law as dramatic works. Consider Teller's Shadow piece.
2. Some pieces of magic aren't that substantial. Stanley Collins's "Jumping Rubber Bands" is a nice magic trick, but if it had been invented during the current law, it is ludicrous to think it a copyrightable dramatic work. Likewise the "Smiling George" dollar bill trick.
(2.a. The work necessary to take a trick from the second category to the first is related to what elevates craft into art.)
3. The pieces of magic that fall into the former category can be broken down into smaller components, which may include script (the actual words overtly expressed by the magician, and an "inner script" as described by Giobbi), blocking, sleights, props, staging, background music, costumes, etc. Some of these components are clearly copyrightable (a written-down script, music); some may be (costumes); some aren't (sleights). In particular, since a sleight is a procedure that can be isolated from a trick in which it is used, and procedures are specifically excluded from copyright protection, it cannot be protected by copyright. The way that a particular trick or routine uses an Elmsley Count may be copyrightable, but the actual process of displaying 3 cards and hiding one to appear to display 4 cards is not copyrightable. Nothing in law prevents anyone else from using it. If Elmsley had copyrighted his "Four Card Trick" in 1959, Vernon's use of the sleight in 1960's "Twisting the Aces" would not have been an infringement of copyright law, even if he hadn't gotten Elmsley's permission to use it (I don't know if he did) or hadn't credited Elmsley.
4. The fact that some elements of a larger trick are not copyrightable doesn't mean that the larger trick itself is not copyrightable. A dramatic work can be copyrightable even if it is based on public domain elements. The movie Forbidden Planet is protected, even though its plot is based on the public domain play The Tempest by Shakespeare. If what I have said earlier led you to believe that this is an element of my argument (as your restatement above seems to indicate), then I'm not doing a good job of writing.
5. Many pieces of magic as published, taught, or demonstrated in current and past books, magazines, notes, lectures, videos, etc. are loosely described. They are given with a sequence of events that must occur (which usually doesn't rise to the level of a plot or storyline), suggestions of patter, and descriptions of necessary sleights. They are more like a recipe from a cook book, or instructions on assembling a piece of furniture, than they are like a play, monologue, or other dramatic work. They are closer to what I describe in ¶ 1 above, rather than ¶ 2. That is, most magic tricks aren't copyrightable as performances. (A good magician may be able to develop some of them into copyrightable works.)
6. The norm as I've come to understand it within magic is that if I buy a book or magazine or lecture notes or instructional video, or pay to attend a lecture, then I have an implied license to perform and otherwise use anything I learn from them as I see fit. This is the default within early 21st century American magic. Most magicians that I know and have discussed the subject with agree. This is not based on law, but on custom. (Copyright law doesn’t address the issue). If a magician wants to reserve certain performance or other rights, he should make that clear in the book, lecture, etc. However, I don't think that copyright law would help the magician enforce those prohibitions. Simply observing a performance doesn't give me the privilege to copy it, though (again, custom, not law – the Masked Magician of a few years back copied the works of others with impunity, and there was no recourse in law to stop it.)
7. I ain't a lawyer, and if any of this is important to you other than as an entertaining internet forum discussion, you are foolish to depend on what I say (or what Tom Stone says).
8. Copyright, even if it did offer the protections that Tom suggests, is a poor means of enforcing the rights of magicians. The peer pressure that we can exert on each other probably works better than copyright law would, since using the courts to enforce the law is so expensive.
9. Having said all that, if I as a magician want to perform or teach something created by another, then out of respect and courtesy (both to the creative magician and to my audiences), I should make sure I have the blessing of the magician whose work I am using (and often, this may simply mean that I own a legit copy of where the work was published).

Tom's discussion of the TRIPS and Berne treaties.

Yes, the United States has signed these treaties, and implemented their provisions by amending the Copyright act.
But how they apply is all based on whether a magic trick is considered a dramatic work. That is unproven within the U.S., and until a court finds that they are, it is an open question as to whether the law offers the protection you suggest it does. Your "Benson Burner" trick (one of the highlights for me of the Genii Bash, by the way) may well qualify. Your "Cylinder and Coins" may not. But this is far from settled law.

But a small number of sleight do clear the threshold of originality (like Williamson's Striking Vanish), so it can't be considered an absolute rule that no sleights are covered by copyright.

Originality is not the issue. Is it a dramatic work? If David wanted to copyright his vanish as a standalone item, then as a standalone item it would have to be a dramatic work. It isn't.
Tom, I think much of where we disagree comes from the definition of a "dramatic work" within the context of copyright laws. Unfortunately these laws don't define their terms so well that we can read it and come to a common understanding of what is intended. Until a judge somewhere makes it clear, this is going to be a grey area.

[Bob Coyne]

I think the crux of the matter comes down to Tom's conception that all movement/actions by the performer are part of what's copyrighted. So if you do a secret move that the audience doesn't perceive, those motions along with all visible/apparent motions are considered choreography and subject to copyright. I think that's just wrong and misses the forest for the trees. Copyright isn't intended to protect how you created a piece, but the piece itself. If you're listening to a recording or reading a score, it doesn't matter whether the music was created manually by musicians moving their fingers or synthesized by a computer. The end result, the music, is what's copyrighted. LIkewise, sleights and gimmicks in magic are part of the method, not part of the effect. I think this is the most natural way to think about it and what the law says (and precedent supports). It would be a disaster if people started trying to use copyright to protect methods. Tom complains about people here looking for loopholes, but it seems to me that arguing that the expression includes the method is exactly that...i.e. trying to find a loophole to make copyright broader than what it is intended to be.

[CraigOusterling]

Anyone have a copy of this? http://legalsolutions.thomsonreuters.co ... /100022791

Entertainment, Publishing and the Arts Handbook, 2012 ed.

I found it by reading 'Copyright of Choreographic Works' here:
http://www.csulb.edu/~jvancamp/copyrigh.html

Might find the answer in there if the 2012 version has been updated to include more than "Dance and Ballet" under the definition of "choreography" is that text.

*shrug*

[Brad Henderson]

I don't think anyone harbors ill feelings toward amateurs, however Tom raises an interesting point. The amateur who, by definition, does not profit financially from his participation within the field of magic has very different concerns than someone who does. It is in the amateur's interest to have as much access to material, and the freedom to do with it whatever brings them joy. This does not always serve the interest of the professional who might not benefit from reproduction of their work, in printed or performance contexts. To acknowledge these different perspectives as Tom has done is hardly any indication of hatred toward amateurs.

Having said that, the fact that IP threads continue to propagate on magic forums (and even in columns in major magic magazines) indicates that there is concern with how we have traditionally done things, or that people are beginning to recognize the differences between how the magic world seems to work compared to the other more established arts. Perhaps this is because the marketplace - long dominated by sales to amateurs by magic shops - has changed. As more and more people begin profiting from the sale of ideas - as more people place themselves in the role of magic dealer (preferring the more popular terms "creator" or "artist") - these issues are beginning to hit home. The concerns of the "semi-professional dealer" (if one can use that term to describe the many people who now sell ebooks and download) now mirror those of the professional. As it is easier to find one's performance material online without one's permission, and then in the show of someone else, more people are beginning to see the concerns with which pro's have dealt for years.

Sadly, so many people seem to want to maintain this wild west approach to magic ethics. And until we as a community decide to come up with some sort of "best practices" guidelines, we will continue to find ourselves in controversy after controversy - where right and wrong don't matter and popularity wins the day.

YOu know, like it's always been.

[JHostler]

Sadly, so many people seem to want to maintain this wild west approach to magic ethics.

Brad - I'm curious what you perceive as this "wild west approach to ethics," and who you think desires to maintain it. Peer pressure mechanisms and codes of ethics (e.g., those of the major societies) are already in place. "Bad guys" are relatively easily identified in online fora such as this. What else can be done? Ethical lapses are not actionable. Legal protections, of course, are an entirely different matter - but I don't think anyone on this thread has endorsed a "wild west approach" to those, either. The various arguments with Tom revolve around his personal interpretation of international treaties and how those treaties are actually interpreted and enforced in the United States.

As for amateurs versus professionals: It's important to remember that a significant percentage (if not vast majority) of "names" in our field were/are amateurs. Bannon and Aronson? Lawyers. Green? A doctor. Krenzel? A psychologist. Curry? An insurance executive. Racherbaumer? Airlines. Marlo? Machinist. You could go on and on. Do folks with an interest in magic exhibit different ethical standards? Sure, but it's a bit unfair (and artificial) to reflexively attribute higher standards to professionals.

[Jonathan Townsend]

I believe the notion of "substantial similarity" covers the matter of others offering "variations" or "improvements" of the sort which are indistinct to lay audiences. Does it really matter of the performer shows his presumably empty hands empty at the same time or one after the other in his routine? What if he tells a fart joke during his ace assembly?

[Tom Stone]

Bill Mullins: Thank you for your cogent and cordial reply! I think I follow your reasoning better now.
Your points 1 and 2 are identical to my views.
Point 2a, it you mean borrowing and applying "art" from related fields while keeping the actual piece untouched , I could (but won't) protest a little.
3: Here we could go on for hours. In all related fields, it is the piece as a whole that is covered. And in all related fields, if there are exceptions they are detailed in such detail that no one need to wonder. Since there are no explicit exceptions...
Procedure... compare when the same thought is applied in a related field. A song can be broken down in smaller parts. Harmony is a system and is exempt from copyright, mood is a feeling that can't be copyrighted, the steps the hands must move over the instruments is a procedure and is exempt from copyright, the way the instruments generate sound is a method, and isn't covered. The only thing that can be copyrighted is the lyrics, since it is like a script. Instrumental songs can't be copyrighted, because everything in it can be described as a method or a procedure.
...But, as you know, music is covered by copyright just the same. It is worth pondering why it is like that.
4: I've misunderstood you completely on this point. Good to know. I agree here.
5: And here we go apart completely. We have probably never read the same books, if your description is sincere. Still, can't other related fields be described with the exact same words? Isn't sheet music a prime example? Sheet music is just simply the sequence of tones in the order they must occur. And a theatre script is just simply the sequence of words in the order they must occur. Hence neither music nor theater has copyright... You see how odd it becomes as soon as these arguments are applied to any other field?
The problem is, I think, is that you look at the documentation of the work, and confuse that for the work itself. As long as the work is properly documented, it doesn't matter if it is badly written. The value of the performance piece is not measured by how good litterature the documentation is.
6: This is what I've grew up with as well, and what was my natural assumption for a long while. So I was quite surprised when I found out that it was the opposite.
I looked into the attempts to stop Masked Magician some years ago, and was quite franky shocked over the lack of knowledge shown. I am about 51% certain that some originators would have won against MM, even back then, if their cases only had been properly prepared.
7: This I agree on. However, there have been changes in recent year, and most in our field seem unaware of this. It might be a good idea to look into it.
8: I'm not worried about peers here. In practice, most peers act and behave just like copyright is a present reality for them, even those who protest against it here. My main concern are those who are not peers, those who would be unaffected by peer pressure. Masked Magician, Rob Stiff, Magic Makers etc.
...Whether magic is dramatic work? At its core, you perform things that seems impossible, and it turns out to actually be impossible. With your knowledge of our art you pretended, you showed a piece of fiction. Another word for fiction?
"Threshold of originality" is worth googling.

[Tom Stone]

Until then, we're stuck hearing him bloviate, cherry pick data, misrepresent

Hello Chris! Where have you been? I expected you to join the fray at least two pages ago.

[Chris Aguilar]

Hello Chris! Where have you been? I expected you to join the fray at least two pages ago.

*Howdy Tom.

---------------
*Copyright 2013 Mac King - Used with permission.

[Jonathan Townsend]

"Threshold of Originality" - something like an Andrus Zone Zero where you drop in an orange and lemonade pours out?

[Bill Mullins]

Several here have suggested that since the copyright law protects works of choreography, that the movement within magic should be thought of as choreography and thus be protected. I have responded that "choreography" in the law refers specifically to dance, and not to structured movement beyond that, and thus it doesn't apply to sleight of hand.

The Compendium of Copyright II is a manual used internally by the copyright office as a procedures guide, and reflects the thinking and practices of the people who execute the copyright laws. Section 450 is about choreography:

"Definition. Choreography is the composition and arrangement of dance movements and patterns, and is usually intended to be accompanied by music. Dance is static and kinetic successions of bodily movement in certain rhythmic and spatial relationships. . . . Choreography represents a related series of
dance movements and patterns . . . Choreography is primarily executed by the torso, limbs, or both, in rhythm."

As I have said a couple of times, Choreography is about dance. It is not a sufficiently broad term to include the specific movements magicians use to execute magic tricks. The Choreography clause of the copyright act does not protect what magicians do as magic.

[Jonathan Pendragon]

and the lovely lakes....

[Tom Stone]

It might be that it will take a whole generation before things become simpler, since the paradigm shift probably won't happen by itself.

The mindset seem rigidly fixed on the idea that a creation must exactly suit an exact definition - a bureaucratic notion only relevant in a system where clerks must file its documentation in a retrievable manner, and therefore needed exact labels, folders and brackets. A system designed to protect publishers, not creators. Designed to make life easier for the filing clerks, not for the creators.
-"Well, it's doesn't fit the 'dance' folder and it's not exactly theatre, so let's cover our eyes and ears and pretend that it doesn't exist."
The old system was inefficient. For every item they needed to retrieve to resolve a copyright conflict, they probably filed thousands of items that never had any problems and never needed to be retrieved.

The registration system and its filing limitations became obsolete in 1989, when copyright became automatic. But these kind of comments indicate that the paradigm shift has not yet occurred:

If David wanted to copyright his vanish as a standalone item

That sencence only make sense, if your base assumption is that the piece eventually need to become filed in a registration system. What David wants is irrelevant within automatic copyright - because it is automatic. No voluntary action is required.

And the same base assumption here:

The Compendium of Copyright II is a manual used internally by the copyright office as a procedures guide, and reflects the thinking and practices of the people who execute the copyright laws.

The compenidium is about the "Copyright Office Practices". It is about the old system and its limitations, and it talks about paperwork, filing requiements, fees and all those things that became obsolete in 1989.
There are no fees, no filing limitations. Copyright is automatic, and it's main purpose is to protect the rigths of the creator. The creator is no longer required to distort his work to make it fit a preconceived bureaucratic bracket.

[Jonathan Townsend]

Section 46* of the guide introduced into our dialog:
http://ipmall.info/hosted_resources/Cop ... r_0400.asp
may suffice to cover sleight of hand done under guise of ostensibly non-action or cover of mundane action. The erdnase text may also serve as precedent in this definition.

has something interest in pantomime:

460.01 Definition. Pantomime is the art of imitating or acting out situations, characters, or some other events with gestures and body movement. Mime is included under this category. Pantomimes need not tell a story or be presented before an audience to be protected by copyright.

461 Pantomime content. To be registrable, pantomimes must include more than a few stock gestures. As there is no copyright protection for ideas in general, a style of movement imitating mechanical dolls, for example, would not be protectable [sic]. A significant amount of copyrightable matter in the form of specific gestures in such style and embodied in some tangible form, however, may be registered. Tableaux employing less than a minimum amount of action are not registrable as pantomimes. See section 433 above.

462 Distinction between pantomime and choreography. In general, pantomime movement is more restricted than dance although, within its narrower scope, pantomime employs more gestures of the arms and facial expressions. Also, pantomime is usually more representational than choreography, in that it imitates or is a caricature of some event or situation. Pantomime movement is synchronized with music less often than is choreography. In fact, pantomimes are often performed without music, and any accompanying sound is dictated by the situation being portrayed. Most often, however, pantomimes are performed without sound or measured rhythm.

463 Embodiment of pantomimes. Unlike choreography, pantomimes are not usually fixed using a specific form of symbolic notation. Conceivably, however, the same systems could be used for notating pantomimes as for dance. To register a work as a pantomime, the movements must be described in sufficient detail to enable the work to be performed from such description, or an actual performance must be captured on some form of film or videotape. Subject to this requirement, any form of copy or a narrative description on a phonorecord will suffice.

For example doing a pass under cover of tapping the edge of the pack on the table is both specific action and activity and crucial to the larger work for its success...