The Limited Protection of IP Law for the Variety Arts

[erdnasephile]

I have read with great interest Sara Crasson's series in Genii.

Boing Boing has published ( http://boingboing.net/2013/01/31/magic- ... ernal.html ) a link to the pdf of her academic publication on the topic (on which the Genii series is based):

[Jonathan Townsend]

The various interests, retail supplier, publisher, performer, hobbyist, collector, adolescent dabbler, casual entertainer ... are, IMHO, worth addressing separately. The notion of copying without permission goes beyond monkey see - monkey do for people who wish to think themselves more than beasts of the field to be m(b)ilked/chattel/addicts in larger society outside the imaginary magicshop.

[Tom Stone]

Sara J. Crasson begin by saying "Variety performers generally present “non-dramatic” acts.." and expect anyone to take a single word she says seriously?

She consciously misrepresent the dutch Rafael vs. Klok case, and she claims to have been a performer for 30 years - but it is suspiciously difficult to find any mention of any of her performances via Google, so it seems likely she misrepresent herself as well - Alex Stone style.

I'd consider her views dishonest and irrelevant.

[Chris Aguilar]

I really enjoyed this very reasonable, well sourced paper from a lawyer (and Harvard Graduate) who has formal knowledge of IP law.

It's a shame that some chose to denigrate her simply because her conclusions do not fit certain preconceived (and ardently held) notions.

Richard is providing a real service by posting her findings in Genii.

[Tom Stone]

I'd prefer someone who knew something about performance art and IP law.

And Chris, even though I understand that you might want to elevate her opinions to "relevant" just to continue our previous quarrels, I suggest that you don't, because there is no way you can claim that she doesn't misrepresent the Dutch case in a most dishonest manner. Read it again if you have any doubts.
I am confident that you and I can find other ways to continue our pummeling.

[Chris Aguilar]

Hi Tom.

[Tom Stone]

Hello sweetie!
So... we'll let others take this one? Fine with me.

[Richard Kaufman]

Tom,I have brought your opinions in the various threads on the Genii Forum to Sara Crasson's attention, and she will be writing a column dealing specifically with the issues you've raised.

[Tom Stone]

Isn't it better to let someone who actually understand these things handle it? Because, isn't it more tempting for her to write something that defend her previous misunderstandings, rather than amending anything?

[Bob Cunningham]

Isn't it better to let someone who actually understand these things handle it?

Yes, let's not pay attention to the Lawyer who hold a Doctorate in Jurisprudence, has passed the bar in at least one state, and practices in the field of intellectual property! Instead, let's seek the counsel of a magician - because they REALLY understand the law!

[Tom Stone]

Yes, let's not pay attention to the Lawyer who hold a Doctorate in Jurisprudence, has passed the bar in at least one state, and practices in the field of intellectual property! Instead, let's seek the counsel of a magician - because they REALLY understand the law!

The first part, yes exactly. A title is worth nothing, if the person holding it is unable to read.
It is better to seek the councel of someone who know both fields, and preferably on a larger scale than national.

[Chris Aguilar]

I'm very pleased that a popular site like boingboing has mentioned this thoughtful paper, giving it much greater exposure.

[Tom Stone]

It's great that a popular sit like boingboing has mentioned the paper, giving it much greater exposure.

You mean, "great" as in the same way Alex Stone, Macknik and Martinez-Conde has become the foremost experts in our art?

[Chris Aguilar]

You mean, "great" as in the same way Alex Stone, Macknik and Martinez-Conde has become the foremost experts in our art?

Hi Tom.

[Bill Mullins]

Sara J. Crasson begin by saying "Variety performers generally present “non-dramatic” acts.." and expect anyone to take a single word she says seriously?

Seems like a true statement to me. Most variety performers present a demonstration of some sort of skill. Juggling, plate spinning, trained dogs, knife throwing, Chinese acrobats, card scaling, George Carl, John Twomey's manualism, ventriloquism, Scott Land's marionettes, Jimmy Riddle and Jackie Phelps, Will Rogers's rope tricks, Bob Arno, Rich Little's impressions, Henny Youngman, gambling exposes -- which are dramatic?


Far more magic tricks fall into this category than tell a narrative story. Who are the protagonist and the antagonist in the Cups and Balls? What is the climax in Ambitious Card -- is it the first time the card rises, or the second time, or the third time? What is the dénouement of Benson Burner?

We laud the magical performers who try do tricks in a narrative context. But they are the exception rather than the rule.

[Richard Kaufman]

Sara Crasson is speaking in legal terms: magic is considered a "non-dramatic art" in the eyes of the law.

I suggest that those of you who have not been through law school and are not qualified attorneys consider that there are in fact legal professionals who know a lot more about this than you. And it doesn't matter what you "want" or "wish" the law covered, it only matters what the law recognizes.

Sara Crasson comes highly recommended--she's not some unqualified boob.

[Tom Stone]

Sara Crasson is speaking in legal terms: magic is considered a "non-dramatic art" in the eyes of the law.

Where does it say that?

[Oddly Bent]

In the first paragraph of "I. VARIETY PERFORMERS AND THEIR WORK"

[Oddly Bent]

"A dramatic work hasbeen defined as a performance that tells a story in a way that the
audience perceives the events as unfolding in front of them, rather than being described to them.63"
From the PDF

[Tom Stone]

Sara J. Crasson begin by saying "Variety performers generally present “non-dramatic” acts.." and expect anyone to take a single word she says seriously?

Seems like a true statement to me. Most variety performers present a demonstration of some sort of skill. Juggling, plate spinning, trained dogs, knife throwing, Chinese acrobats, card scaling, George Carl, John Twomey's manualism, ventriloquism, Scott Land's marionettes, Jimmy Riddle and Jackie Phelps, Will Rogers's rope tricks, Bob Arno, Rich Little's impressions, Henny Youngman, gambling exposes -- which are dramatic?


Far more magic tricks fall into this category than tell a narrative story. Who are the protagonist and the antagonist in the Cups and Balls? What is the climax in Ambitious Card -- is it the first time the card rises, or the second time, or the third time? What is the dénouement of Benson Burner?

We laud the magical performers who try do tricks in a narrative context. But they are the exception rather than the rule.

It seems you are thinking about theatrical narrative and theater drama. This isn't theatre. It is still dramatic work and our kind of narrative is only marginally overlapping theatre style narrative.

Look at this:
http://www.youtube.com/watch?v=4DoSU30zgoU
Try to tell me that isn't dramatic work, and that there is no narrative of any kind. Then read the documentation of this piece in his book and try to convince me that there is one iota less artistic thought and passion in this piece than in the average theatre production. This is art of the highest caliber.
Then look at these:
http://www.youtube.com/watch?v=CUcw1dj6DIY
http://www.youtube.com/watch?v=WAP7fVQcHWw
http://www.youtube.com/watch?v=8LGVE9D_X9o

This is lacking narrative? And is non-dramatic in its core and essential nature?
You must really, really twist and stretch the truth a lot to reach a conclusion like that. And to stretch the truth like that... well, Hanlon's razor works for me.

What the dénouement is in Benson Burner?
The piece is a physical representation of my passion for my craft and art. It is a ritualistic sex act in the mind. I dress up for it, and take my time so that it is clear that I'm not kidding. The first phase is foreplay, the second phase is intercourse and then it ends with an exihibitionistic ejaculation.
You don't consider that to be a narrative of dramatic nature? If that isn't, then what is?

[Tom Stone]

"A dramatic work hasbeen defined as a performance that tells a story in a way that the
audience perceives the events as unfolding in front of them, rather than being described to them.63"
From the PDF

I don't even know what that means. The audience? Since when have they been a part of the process? They enter the story much later, once the work is realised and can be made public.
Would that "definition" label "The Bald Soprano" as non-dramatic, since it is close to impossible for the audience to perceive the events as unfolding in that play?

[Tom Stone]

Sara Crasson comes highly recommended--she's not some unqualified boob.

I question that. I suspect she have her own reasons for obfuscating things. Someone who makes a living out of deciphering a maze of exceptions and loopholes have a vested interest in keeping simple matters complicated.

But on page 125 in the pdf, you can clearly see that she doesn't understand magic and doesn't understand copyright.

The way Crasson describes it, it sounds like the trial was about whether our work can have copyright protection. That both false and deceptive. Why? What on earth is her purpose in misrepresenting this trial? The trial was not at all about that - it was already a given that our work is covered by copyright.
The actual purpose of the trial was to ascertain whether Klock had infringed on Rafael's work. And the trial was a whopping success, as the court came to the correct conclusion that yes, an infringement had occurred. The outcome of the trial mirrored exactly the guidelines we follow when doing proper crediting.

But look at the odd conclusion Crasson comes to:

• The Dutch court noted that while the basic illusions alone (thrusting a hand through a person’s torso or knocking a person’s head off their shoulders and restoring it) may not be protected.

Only someone who knows nothing about our art and copyright would be able to come to a conlusion like that. Isn't it plain as day that in Crasson's mind, there can be no creators and innovators in our field, and that these so-called "basic illusions" must have sprung from nowhere, untouched by human vision or design.

No, Crasson is misguided, incompetent or dishonest. Those are the only plausible explanations.
What the Dutch court actually noted was that it would be no infringement on Rafael's work to thrust a hand through someone's torso, nor would it be an infringement on Rafael's work to knock the head off someone's shoulders. And thank god (or any deity of choice) for that, since that ruling also mirrors what we would follow when doing proper crediting.

Because, and let's do what Crasson is trying hard not to do, look closer at what Rafael's work consist of.

Rafael's work consist of two derivative pieces that has been molded into one piece in an original fashion.
The first piece is based on (I'm told, but have been unable to confirm) a piece by Ernest Barbour that is old enough to be in Public Domain. It would have been a disaster if the court had ruled that performing a P.D. piece by Barbour would infringe on Rafael's work. Hence, the court made it clear that doing that P.D. piece would not infringe on Rafael's work.

The second piece, the falling head, is derivative of Kawakami Ikuko's work, and is not in Public Domain. The same here - can you imagine the disaster if the court made a ruling that in effect would mean that Ikuko would infringe on Rafael's work if she performed her own work? Hence, the court made it clear that performing the falling head would not constitute an infringement on Rafael's work (whether it might infringe on Ikuko's work is outside the realm of a civil case like this). Exactly mirroring what we would consider proper crediting.

The trial was not about the derivative parts, but about what Rafael had contributed as a whole. And, as is apparant for anyone who know the separate pieces, it is a non-trivial problem to make a routine out of those pieces. (Imagine following Ultra-Mental with Brainwave, without a deck switch). In order to accomplish it, Rafael had to reinvent Ikuko's piece from scratch. Still derivative, but definitely not a copy.
Or, in short, Rafael's contribution was considered non-trivial and significant, and anyone doing it without express permission is infringing on his work. Which is what proper crediting would say, and it is what the Dutch court mirrored in their ruling.

So I wonder - this trial was a huge win for all artists everywhere, so why does Crasson attempt to portrait it as a defeat?

[Tom Moore]

I've written at length on this before but i feel it is important to stress that there is NO legal concensus on IP and copyright laws; the rules and policies affecting the US are very different to those affecting Europe. Here in England (which is in Europe, but not) we have a whole set of other laws and principles many of which also apply in commonwealth countries. This means that (as has happened in the past) one of my ideas was copied in Italy - i could take action against them though it was complicate, in the UK & Canada i could stop them and recover damages as a matter of routine but in the USA i had no chance at all and the best hope was to filibuster and financially cripple them.

If however I didn't have dual nationality or i'd been a national of a different country then some of these options would not have been open to me, and no doubt other options may have presented themselves. For instance in the UK (and most of the commonwealth) there are specific laws relating to (and protecting against) blatent, deliberate copying of others IP; If Teller was a commonwealth national and so was "the rose guy" then statutory action could have been taken to stop him and block performance almost immediately.

Whilst i appreciate the GENII is predominantly a US publication i'd echo Tom's concerns that certain things are being published "as fact" situations which actually are considerably more complicated and which have different outcomes for nationals of other countries. I also agree with Tom that the assesment of the Klok/Rafael case seems slightly at odds with the assesment of others more experience with the specific legal system in force and how they are treated within the creative community in these legal Jurisdictions. She's not necessarily wrong but certainly has a markedly different take on the situation to others....

[Chris Aguilar]

Some video. and a link.

[Ted M]

Link to the Klok case ruling, translated from Dutch to English (with all the imperfections of machine translation) via Google Translate:

http://translate.google.com/translate?s ... 95&act=url

[R.E.Byrnes]

Tom Stone's contributions are always provocative and passionate; he's an extraordinary thinker and performer in magic. And while most lawyers would benefit from his spirited perspective on the Dutch intellectual property case described above, that perspective is more an act of advocacy, whereas Sara Crasson's Genii contributions have consistently described the dominant, majority-jurisdiction take on legal issues most likely to affect working professionals.

That's essentially how law school is taught. You don't learn the law of any particular state or jurisdiction. Rather, there's an attempt to, through reading and discussing cases from multiple jurisdictions, gain some understanding of the most likely litigation outcome, though hardly the only outcome.

Even constitutional law, which purports to making final, absolute pronouncements, is subject to a similar range of uncertainty, in addition to being ideologically driven in a way you typically don't see in other areas of the law.

And as for Sara Crasson having some sort of interest that's advanced by a tendentious summary of intellectual property law, it's the conclusion that magicians have lots of rights, not a paucity of options for protecting intellectual property, that would accrue to her, and any lawyer's, self interest. No client pays you a cent for pretending that there are no viable claims against it, not least because it would be completely ineffective.

There will be litigation as long as there are viable theories of intellectual property infringement, and while Tom Stone articulates some foundations for viable theories, I'd not rely too much, either way, on one Dutch court's holding.

Finally, magicians seem to get uniquely hung up on terminology. Referring to "Out Art," as is quite common on the other big magic message board, doesn't transform a middling, derivative performance into something profound; and whether there's a legal doctrine that deems magic "non-dramatic" is irrelevant to virtually every discussion and performance of magic. It's just a legal construct, something that pertains only in the rare moments when there's a legal proceeding that concerns magic.

Whether Sara Crasson is a performer at all is equally irrelevant to her rendering a useful, thorough, and dispassionate summary of intellectual property law. In that, she's no Alex Stone, who has inexplicably chosen to perform magic publicly and make it relevant to his book. I'd not discourage Tom Stone and others from advocating for better protections for magic performers and inventors. But the unwarranted take-down of Sara Crasson isn't even necessary to make those points.

[Jonathan Townsend]

Earlier today I asked a coworker if the stage show of Mary Poppins included a reworking of the movie moments where the paper written by the children is torn, the pieces fly up the chimney and then reassembled and read by Mary.

And what would that mean to a performer who decided to put that into their act?

[Bill Mullins]

It seems you are thinking about theatrical narrative and theater drama. This isn't theatre. It is still dramatic work and our kind of narrative is only marginally overlapping theatre style narrative.

I'm thinking about drama, and I'm trying to do it in the way that Crasson did, as least as I understand her writing (since it is her quote that you are disagreeing with). The context is the U.S. Copyright Law, which specifically grants protection to works of authorship that are dramatic works (see 17 USC § 102(a)(4)). From the plain language of the law, from the legislative history when it was being passed, and from other commentary, "drama" here means performance works that tell a story. I used terms above (antagonist/protagonist, climax, dénouement) which are classic elements of such drama -- a character experiences conflict, and resolves it. David Mamet says "Drama . . . is the quest of the here to overcome those things which prevent him from achieving a specific . . . goal." If you want to say drama has a different meaning, go ahead, but you have to then show that your meaning is appropriate -- you can't just say "Magic is dramatic" when so many magic tricks don't contain the elements of drama as the rest of the world understands it. Copper Silver Brass is not drama, nor are the Chinese Sticks.

Many of our better magicians have searched for ways to put drama into their tricks – see Dai Vernon telling about a spectator jumbling up the deck, but the magician fixes it (in Triumph), or the insertion of gambling skill demonstrations into a "gambler vs magician" plot. (Note that this often requires a second character – drama comes from conflict, and there has to be an antagonist for the protagonist [magician] to face). Unfortunately, there are only a few ways to do this with the average trick, and some are so overused as to have become cliché.

This is not to say that many magic routines aren't artistic (I believe they are). But it does say that if you want to assert that copyright law protects them, you have to say either that:

a. They are in fact covered by § 102(a)(4). That is, they are dramatic, in the sense of drama as is meant by the law. (You do assert this many times in this and other threads, but you never present an argument from history, theater, law, etc that shows that your assertion is generally accepted). While you could probably be successful with some individual routines, I just don't believe you could support it as a generalization. OR

b. They are covered by one of the other sections of the law, such as (4) pantomimes and choreographic works. I don't believe that they are for reasons I outlined here and here. OR

c. They are covered by some unspecified common law principle, or one of the other specified sections of the law. If a judge decides this, then okay – it's covered. But that hasn't happened yet, and until it does, it's not law, but a wish.

Look at this:
http://www.youtube.com/watch?v=4DoSU30zgoU
Try to tell me that isn't dramatic work, and that there is no narrative of any kind. Then read the documentation of this piece in his book and try to convince me that there is one iota less artistic thought and passion in this piece than in the average theatre production. This is art of the highest caliber.
Then look at these:
http://www.youtube.com/watch?v=CUcw1dj6DIY
http://www.youtube.com/watch?v=WAP7fVQcHWw
http://www.youtube.com/watch?v=8LGVE9D_X9o

This is lacking narrative? And is non-dramatic in its core and essential nature?
You must really, really twist and stretch the truth a lot to reach a conclusion like that.

The existence of counter-examples does not disprove the general statement: Variety acts, generally, are not dramatic. For every routine, trick, act, performer you can find who is dramatic and artistic, I'm sure I can find 100 that aren't. (I gave a list of a number of non-dramatic variety acts previously, and I don't see you pointing out the drama in any of them).

And to stretch the truth like that... well, Hanlon's razor works for me.

Hanlon's Razor: "Don't attribute to malice that which can be explained by stupidity." Tom, you and I have gone around this a couple of times at a cordial level, even if we disagree. I respect very much your passion and what you want from magic, and how you think society should treat the art and craft of magic. I'm not going to accept that you are saying that I or my arguments are malicious or stupid. They are not, and I'm not stretching any truths here. I must be misunderstanding what it is you mean by this comment.

[Bill Mullins]

Then look at these:
http://www.youtube.com/watch?v=CUcw1dj6DIY
This is lacking narrative? And is non-dramatic in its core and essential nature?

Great act, but not dramatic or narrative. I'll put the question back at you -- what is the story here? What is the narrative arc? Where is the conflict? What is it that makes Sousa's (admittedly excellent) performance anything other than a sequential demonstration of impossible looking acts? (the spectator at 1:57 seems to agree).

[Tom Stone]

But the unwarranted take-down of Sara Crasson isn't even necessary to make those points.

The claim is that she is proficient in both law and magic. I have a small interest in a very tiny area of the former, but the latter is where my strength is - and from that vantage point I can easily recognize that Crasson knows close to nothing about our field. So how should it be evaluated that she also claim to know law? If her grasp of the law is on the same level as her grasp of magic, then she know nothing about the law either.

Yes, it is necessary with a take-down of Sara Crasson. Otherwise, people might think she has a point, when she doesn't.

[Richard Kaufman]

Tom, you are undermining the parts of your argument that might be valid by belittling the professional attorney who is writing these pieces. Her ability as a magician is irrelevant to her ability as an attorney. Connecting them is a fallacy.

[Tom Stone]

Then look at these:
http://www.youtube.com/watch?v=CUcw1dj6DIY
This is lacking narrative? And is non-dramatic in its core and essential nature?

Great act, but not dramatic or narrative. I'll put the question back at you -- what is the story here? What is the narrative arc? Where is the conflict? What is it that makes Sousa's (admittedly excellent) performance anything other than a sequential demonstration of impossible looking acts? (the spectator at 1:57 seems to agree).

If you need to insult Sousa to make your point...

It is not a sequential demonstration of impossible looking acts. I choose his act as an example just because its narrative is the opposite of sequental. You can not see how it loops back, again and again? I also choose it as it is so clearly not a theatrical narrative, but our kind of narrative.
The conflict... take another look. You don't see any conflict? Is not every single effect the very embodiment of conflict between what is seen and what is known.

What the spectator at 1:57 is irrelevant, as is the rest of the audience. Why all this focus on the audience? It is almost as if the base assumption is that no magician can have anything worth expressing, and that there can not exist anything which isn't a direct offshoot of what the audience want to express. Well, I disagree strongly. The audience is irrelevant.

[R.E.Byrnes]

Advancing a different interpretation of a law or a different emphasis as to a particular case's holdings isn't the same thing as "not knowing the law." It's common in the throes of advocacy to claim the other side's interpretation isn't just less good, but categorically "wrong." That's among the least compelling forms of advocacy, though, because it's so rare that a particular interpretation is established to be wrong -- in all courts, throughout all jurisdictions, and for all of time.

An example from outside intellectual property, to perhaps cool the passions: A recent U.S. Supreme Court decision either holds that, in a class action, the class members' damages cannot differ - which would likely preclude a majority of class actions -- or it doesn't at all alter the long-standing rule that damages can differ. The two arguments are irreconcilable; yet both persist; and the advocates on either side would themselves be wrong if they were to contend the opposing interpretation to be wrong merely with reference to the language of the decision. In the common law systems that dominate jurisdictions most likely to determine magicians' intellectual property rights, the same dynamic holds.

Is David Sousa's red envelope routine "dramatic" under U.S. intellectual property law? I haven't the slightest idea. I imagine that after two years of litigation and hundreds of thousands of dollars in fees paid to a good firm, you could get that outcome (which isn't an outcome at all, just a prerequisite to spending several more years litigating). Or you might not. That's about as certain as you can be when there is virtually no body of law specific to magic, and the best anyone can do is draw reasonable inferences from quite different factual settings. In all -- not solely her attention to one pretty obscure case as these things go -- I'd again say that Sara Crasson has done that.

(For my part, I find David Sousa dazzling. The routine fools and enchants me even after having heard him explain nearly every move during a lecture, which above all accentuated his originality. I prefer to talk about that to discussing the likely grim legal prospects he'd have if his act were copied. That said, we could do a lot worse than adopting Tom Stone's broad, hopeful perspective on these things, which above all seems devoted to making those prospects less grim and celebrating originality.)

[JHostler]

Richard Kaufman wrote:Sara Crasson comes highly recommended--she's not some unqualified boob.

I question that. I suspect she have her own reasons for obfuscating things. Someone who makes a living out of deciphering a maze of exceptions and loopholes have a vested interest in keeping simple matters complicated.

Tom - You're really, REALLY undermining your own credibility with these ridiculous assertions. With all due respect for your excellence as a performer and innovator, your comprehension of IP law – particularly as it currently stands in the United States – isn’t worth its weight in pocket lint. Having been proven wrong dozens of times on multiple threads in multiple fora, your last resort always seems to be some sort of highly emotional ad hominem attack. And to what end are these bridges burned? No law (or interpretation thereof) has changed.

[Tom Stone]

Tom, you are undermining the parts of your argument that might be valid by belittling the professional attorney who is writing these pieces. Her ability as a magician is irrelevant to her ability as an attorney. Connecting them is a fallacy.

Richard, she makes the connection herself, on the first page of her piece:

Sara Crasson’s practice primarily focuses on commercial litigation, includ- ing intellectual property matters, in the New York office of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. She received her B.A. from Harvard University, cum laude, (1997) and her J.D. from Fordham University School of Law (2005) prior to clerking for the Honorable Judge K. Michael Moore in the Southern District of Florida. She has been studying and performing magic for thirty years.

In her own words, black on white, she tell us that she has been practicing law for 16 years, and have been practicing magic for almost twice as long. Why would she say that, if not to claim that her knowledge in magic isn't only on par with her knowledge of the law, but even surpassing it. But, as it turns out, her 30 years have given her close to no knowledge about our art. And we should just take it for granted that she would become more proficient in law in half that time?

Let's say this was about dentistry instead. A lawyer offer you some legal advice before going to the dentist. Within the advise, it becomes clear that the lawyer believe that dentists all are small hairy men from Canada whose craft solely consist of banjo playing and clog dancing. Would you still think the legal advice regarding dentistry would be relevant?

[Jonathan Townsend]

IMHO the drama is rhetorical and self evident to the audience. The performer elicits the specious conviction that (a) by actions (b) to apparently demonstrate that (c). The audience recognizes their convictions and the specious nature of the argument and responds with applause. IMHO it's similar to "getting" a joke.

[Tom Stone]

For my part, I find David Sousa dazzling.

Agreed! The structure in his act is so much more advanced than what is possible in related fields.

The routine fools and enchants me even after having heard him explain nearly every move during a lecture, which above all accentuated his originality.

A surefire sign that the art goes far beyond simple "secrets". When the spectators know exactly what you are doing, and the piece still is as effective, you have reached what the art is all about.

[R.E.Byrnes]

Though not, as far as I know, a lawyer, Tom Stone argues legal points with enviable intelligence and passion. I always feel a bit of regret taking a boringly pragmatic position when someone like Tom is aspiring to make a field like law, which could use a major injection of creativity, more responsive to the realities of magic. Though I have only rarely practiced around intellectual property issues, I do hope if the time comes again that I'll sound more like Tom than me in this thread. Whether what he's saying is advocacy or a description of empirical reality, it's animated by the same energy that makes him such a great performer and thinker. I'm certainly not going to tell him anything is impossible.

[Brad Henderson]

Variety acts, generally, are not dramatic. For every routine, trick, act, performer you can find who is dramatic and artistic, I'm sure I can find 100 that aren't. (I gave a list of a number of non-dramatic variety acts previously, and I don't see you pointing out the drama in any of them).

I've seen many a play that lacked any sense of drama as well, in spite of the fact it had dialogue, conveyed a story, and was presented in a theater.

Bill, I think your interpretation places too great an emphasis on the "quality" of the thing rather than the "condition" of it. Would a monologue be a dramatic work, regardless of whether or not it advanced a narrative per se? Are not most magic presentation monologues? Would a stand up act be protected by the "drama" clause? Or do you think it is strictly limited to things we might find "dramatic" or contain a story element?

I just watched a wonderful "circus" - it was merely 8 dancer/acrobat/gymnasts. No sets. No costumes beyond brown tights. Props were minimal. Their opening routine was incredibly dramatic and conveyed a story, albeit not in a "once upon a time" sense. I realize that choreography would protect this creation if classified as a dance, and while there were dance elements, there was also a stationary trapeze and adagio moves. I would argue those few moments were drama as much as any play or musical I have ever seen, and they did convey elements that suggested an advancement of action, conflict, character and resolution. Are you saying you think that could not be protected under the drama condition?

[Bill Mullins]

If you need to insult Sousa to make your point...

Insult? I was quite complimentary of his act. If something is green, it is no insult to say that it is not purple.

If I say something wrong, then show me how. Don't make up stuff instead and say that I insulted Sousa.

It is not a sequential demonstration of impossible looking acts. I choose his act as an example just because its narrative is the opposite of sequental. You can not see how it loops back, again and again? I also choose it as it is so clearly not a theatrical narrative, but our kind of narrative.

It's almost like you are making my point for me. "Narrative" has an accepted meaning everywhere else in the world, but "our kind of narrative" must mean something else. So whatever Sousa's act has, it isn't narrative as is understood elsewhere.

The conflict... take another look. You don't see any conflict? Is not every single effect the very embodiment of conflict between what is seen and what is known.

All magic tricks exhibit this type of conflict -- but that isn't dramatic conflict. The kind of conflict I'm referring to, dramatic conflict, is the tension between what the protagonist wants, and how circumstances or adversaries work to keep him from getting there. (Cardini wanted the cards to go away, but they kept showing up. That's the conflict I'm talking about.)

What the spectator at 1:57 is irrelevant, as is the rest of the audience. Why all this focus on the audience? It is almost as if the base assumption is that no magician can have anything worth expressing, and that there can not exist anything which isn't a direct offshoot of what the audience want to express. Well, I disagree strongly. The audience is irrelevant.

A performance art without an audience is, what? an oxymoron? rehearsal? masturbation? Whatever it is, it makes no sense. Everyone has their own definition of art, but communication of emotion or feeling from the artist to the viewer seems important. The artist makes a statement, but it isn't art unless the statement is heard or seen by another. You may create a piece in isolation, bringing all your skills, technique and creativity to bear, but its success can only be evaluated in terms of its effect on an audience. An analogy from another field: if you tell a joke, and no one laughs, then by definition it wasn't funny. Comedy succeeds or fails based on the audience reaction. Magic is similar. If you don't do it for other people, it isn't magic. If it doesn't create an effect in the minds of the audience, it isn't magic. Without an audience, it isn't magic, and it certainly isn't magical art.

Bill, I think your interpretation places too great an emphasis on the "quality" of the thing rather than the "condition" of it.

Maybe so, but I appreciate that you recognize that I'm saying quality is relevant. Some magic is good enough to be art, most isn't. Some is creative/dramatic enough to be copyrightable, most isn't. Tom has (I think) made the opposite argument; that the "condition" is sufficient. But I don't seem him supporting that argument other than by insisting it is so.

Would a monologue be a dramatic work, regardless of whether or not it advanced a narrative per se? Are not most magic presentation monologues? Would a stand up act be protected by the "drama" clause? Or do you think it is strictly limited to things we might find "dramatic" or contain a story element?

A monologue or stand up act is easily copyrighted as a literary work -- just write down the script or record the performance. The difficult parts of magic (and other variety acts, as discussed by Crasson) are the elements that aren't exposition.

"Triumph" is a mini-play; it has characters, an arc, a climax, a resolution. The mixing of cards and the false shuffle are the elements of the play that make it magic, but they aren't dramatic in and of themselves (although they are used to support the drama), and they aren't (in my opinion) copyrightable. Let me say that again -- the magic isn't copyrightable.

Ricky Jay's presentation of Erdnase's "Exclusive Coterie" is similar (except for the fact that it is old enough to have fallen into the public domain). A mini-play, characters, etc. Full of drama. Great sleight of hand adds to the story, but the sleight of hand isolated from the rest of the routine is, despite creativity and skill, not copyrightable. You could do the queen assembly without the Erdnase story, and with simple "adventures of the props" patter, and you'd still have a magic trick, but it wouldn't be drama in the sense of the copyright act, and it wouldn't be copyrightable.

I just watched a wonderful "circus" - it was merely 8 dancer/acrobat/gymnasts. No sets. No costumes beyond brown tights. Props were minimal. Their opening routine was incredibly dramatic and conveyed a story, albeit not in a "once upon a time" sense. I realize that choreography would protect this creation if classified as a dance, and while there were dance elements, there was also a stationary trapeze and adagio moves. I would argue those few moments were drama as much as any play or musical I have ever seen, and they did convey elements that suggested an advancement of action, conflict, character and resolution. Are you saying you think that could not be protected under the drama condition?

No, I'm not, and I have been suggesting all along, in this thread and the one of a week or so ago, that magic and other variety act can have sufficient dramatic content to be protected. I am also saying that most magic, as performed today, as written about in books, magazines and notes, as depicted in videos, as taught in lectures, doesn't rise to this level. It's a case by case thing -- some may be good enough, but most isn't. Sturgeon's law applies (if he had lived in the age of youtube, it would be "99.9%", but I digress).

I'm also saying that magic has a disadvantage compared to other performing arts in that what makes it "magic" isn't specifically protected by the copyright law the way that theatrical plays, songs, dance, and pantomime are. Even though magic is the result of a creative process, there is nothing inherent about a magic trick or routine that gives it the automatic protection that Tom Stone has suggested. It would be great for magicians if it were, but it isn't. This isn't to denigrate what magicians do, nor to "insult" them. It's just an observation about how the world is. (And I'll say again that we should act as if it were protected; that is, we should treat the works of other magicians with respect and as if the acts and routines were their property, which we shouldn't use without their permission.)