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Intellectual Property Question

Posted: August 13th, 2015, 11:43 pm
by Jeffrey Korst
This is not directly magic related, but am hoping for some insight.

A friend performed as part of a long running show for the last 11 years. After a dispute with the producer/director, he quit.

In the last of a string of emails that went public, he says "and don't even think about doing X or anything like Y. That's MY bit, I created it, and I will hear about it if you do it.

I'm wondering if he has a leg to stand on. If material was created during the run of that show, for that show, would rights revert to the production or are they his? Would it matter if the bits were created prior to his being cast and he brought them with him vs created by him during the run?

Thanks for any thoughts.

(and if this is inappropriate or in the wrong section, feel free to take the appropriate action)

Re: Intellectual Property Question

Posted: August 14th, 2015, 12:55 pm
by Bob Cunningham
Hi Jeffrey,

Your friend needs to consult an Attorney who specializes in IP.

Asking for a legal opinion in a magic forum is a little like asking about cancer treatments at a retirement center. While the residents may have a general interest in the subject, you are unlikely to find any meaningful or authoritative information to help you.

Re: Intellectual Property Question

Posted: August 14th, 2015, 1:05 pm
by Richard Kaufman
Part of it will depend upon under what circumstances he was hired (what type of "hire"), whether he can prove he created the material in question (for example, was he doing it before entering this show, or was he doing it in private gigs before the date when the producer claims to have invented it, etc.)

There are various proofs to be made: proof of who created it, proof of who wrote it, proof of the contribution of the direction, proof of the contribution of the producer.

It's complicated.

Re: Intellectual Property Question

Posted: August 14th, 2015, 1:11 pm
by Leo Garet
Richard Kaufman wrote:It's complicated.

Indeed it is. :?

Re: Intellectual Property Question

Posted: August 14th, 2015, 5:57 pm
by Jeffrey Korst
I'm really not asking for my friend but in a more general way.

I saw my friends email, and later someone offered the opinion that the rights might actually not be his, but belong to the show. Knowing how excited the board can get when discussing intellectual property, I thought I'd put the question out there.

There's little doubt in my mind that, if the producer leaves the bit in with a new actor, an attorney will be consulted!

Re: Intellectual Property Question

Posted: August 14th, 2015, 10:33 pm
by Richard Kaufman
There's a lot of proof required on both sides, and that means depositions, which gets expensive very quickly.

Re: Intellectual Property Question

Posted: August 15th, 2015, 4:36 am
by Tom Moore
Broadly speaking, if you're hired in to work on a show then the show will "own" whatever you create or contribute to the show. They might not have an exclusive right to it (ie you can continue using it) but if they paid you to create/develop/refine it then they own it. If you bring in an "act as known" to an existing show then things get a little more complicated as you would own the source material but they would own the updates and refinements. Look at Cirque du Soleil - the original cast of any production are significant contributors to the show but when they leave the company hires in performers with similar skills to do largely the same tricks because these sequences belong to the show.

Think about if you had spent 5 years at baker school learning how to make bread, then you were employed by "Fred's bakery" for 10 years and helped develop a new type of bread for them. Since you did it in their kitchens, using their ingredients and whilst on their payroll there could be no doubt that they "own" that new type of bread even though it is based on skills or knowledge you already had from baker school. If you left Fred's bakery and went to work for "Bob's Bakery" then you wouldn't be able to make that fancy Fred's bread for them to sell because it belongs to Fred's bakery, however you could use the knowledge and expertise you have to develop a new, improved type of bread for Bob's bakery.

There's lots of complicating factors to this - do you actually "own" the "original" material you think you've contributed (you'd be surprised how many people think they have original material when actually it's just stuff they'd forgotten they saw someone else do) and most importantly, what does your contract say. If you are EVER employed as an entertainer and your contract doesn't specifically have a copyright clause in it that explains explicitly who owns the material before and after performance then walk away and find yourself a better agent.

Re: Intellectual Property Question

Posted: February 27th, 2017, 12:50 pm
by webbmaster
I'm reminded of this story about IBM the computer company, not the magic club, because I came from an IBM town. Well anyway, the deal everyone signed (signed away) was the fact that if they invented a new mousetrap at home...nothing to do with computers, off the clock, IBM owned it ! Spooky.

Anyway, the point is that you can USE your own idea. It is just when it comes to selling it and making money that way, well call in the clowns (sorry...lawyers). Same thing comes up with artwork for publications and Richard knows all about this too. The artist is sometimes allowing the publication to USE a copy of a piece of artwork one time, or more if specified. The artist can sometimes retain the rights for other uses of that art piece...but to really enforce it, you'd need a lawyer and there goes all your profits. I sense I'm not really helping you. Sorry.

Re: Intellectual Property Question

Posted: February 27th, 2017, 2:46 pm
by Richard Kaufman
Unless the artist has signed a work-for-hire agreement, the original artwork remains his property.

Re: Intellectual Property Question

Posted: February 27th, 2017, 2:51 pm
by performer
Apart from the rights and wrongs of the situation the reality is that the person who is in the weakest position is always the one initiating a lawsuit in the first place. The one doing the suing is always the one who is in the weakest position. First he or she has to win the case which is problematic in itself. Then after overcoming that major hassle the real problem starts. Enforcing the judgement. That is often more difficult than winning the case in the first place, especially if the person is sharp enough to make himself judgement proof.

I suspect it was a daft email to send in the first place. If I had gotten something like that I would have immediately made an effort to steal it even if I didn't really want it.

Re: Intellectual Property Question

Posted: February 27th, 2017, 8:21 pm
by Jack Shalom
As said above, lots of different answers, and it depends.

To take one interesting example: for a number of years, theater directors would "workshop" an idea for a future show. Actors would improvise on a theme, while a "writer" would pick out and transcribe the good stuff. But often those very same workshop actors were not cast in the official production, and were not compensated additionally for their work.

I believe it was with A Chorus Line that Actors Equity negotiated a contract that specifically covered such situations; the original workshop actors get additional compensation for their contributions and often also get first crack at casting for the official production.

On the other hand, if an actor in an original cast creates a little bit of business that goes into the stage manager's prompt book and often the published version, while the succeeding actors in that role may well be required to copy that business, I don't believe that the original actor receives any more compensation.

Of course for magic performances the rules may be very different.

Re: Intellectual Property Question

Posted: February 27th, 2017, 8:39 pm
by Jeffrey Korst
Thanks for the additional thoughts.

For whatever reason, the person cast to fill the role did neither of the bits the first performer was claiming rights to, so it was not an issue.