Hauntiques: "non-renumbered"...

Discuss the latest feature articles in Genii.
Guest

Re: Hauntiques: "non-renumbered"...

Postby Guest » April 22nd, 2007, 9:27 pm

Dee wrote:
Now, how is it different if a magician performs Mr. Chelman's presentations, verbatim, for money?
_________________________________________

Because of the history of magic book publishing and the way the law is structured and interpreted in this country. It may be different in Belgium, France, and Italy giving Chelman different rights (perhaps) but not here with regard to magic and it's presentation under US Copyright.

The presentation of a magic trick is not viewed as a "play" under the law. The only thing Chelman could have going for him would be a contract with the buyer of the book and as I've said several times before, the mere publishing of his desire/hope/wish in the front of the book does not in any way establish a contract with the buyer.

And as I wrote before, if he can grant a right, he can also say no. By granting a right that is limited or exclusive, he gives it value. For it to maintain value to the people who are paying for the privelege, he must enforce that exclusivity. Absent that, he would be taking money for nothing. So, that means inforcement of the limitation by prosecuting those who perform without permission. I can't see any sane individual spending the time and resources to do that.

Guest

Re: Hauntiques: "non-renumbered"...

Postby Guest » April 22nd, 2007, 9:31 pm

If I took, say Spirit Theater, and adapted it verbatim into a stage play...would that violate copyright?

P&L
D

Guest

Re: Hauntiques: "non-renumbered"...

Postby Guest » April 22nd, 2007, 9:33 pm

Dee wrote
OK, if I verbally recorded one of your copyrighted books, and sold it on audiotape or cd, would that violate your copyright?
_____________________________________

Any book published carries the following in various forms:
Copyright (Date) by Author or Publisher
All Rights Reserved, including the right of reproduction in whole or in part in any form.

Other notices say: No part of the publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without prior written permission.

That pretty much covers it.

Guest

Re: Hauntiques: "non-renumbered"...

Postby Guest » April 22nd, 2007, 9:40 pm

The presentation of a magic trick is not viewed as a "play" under the law.>>>>

I'm not saying it is. I'm saying it's a copyrighted book, and as such you can no more take large sections of it verbatim, without the copyright holder's permission, and perform them publicly and for money, than you can with "The DaVinci Code," "House of Sand and Fog," "Slaughterhouse-Five," or "What To Expect When You're Expecting."

It doesn't have to be a "play" to be protected by it's copyright.

P&L
D

Guest

Re: Hauntiques: "non-renumbered"...

Postby Guest » April 22nd, 2007, 9:42 pm

Dee wrote
If I took, say Spirit Theater, and adapted it verbatim into a stage play...would that violate copyright?
_____________________________________________

Probably not, BUT, and this is a big caveat, any investors, backers, or producers of a play based on Berger's Spirit Theater (for example) would almost certainly insist that Eugene sign a waiver/clearance because it is so much easier (cheaper) to reach an accord BEFORE something is produced than after.

Avoiding a lawsuit does not mean he has rights, it simply means it is far cheaper to deal with the highly expensive potential of a lawsuit before the fact than after.

User avatar
Tom Stone
Posts: 1333
Joined: January 18th, 2008, 12:00 pm
Location: Stockholm, Sweden
Contact:

Re: Hauntiques: "non-renumbered"...

Postby Tom Stone » April 22nd, 2007, 9:48 pm

Chris Aguilar wrote:
I only posted that up because it's relevant to the conversation. It has nothing to do with U.S. patent law. Unless Mr. Chelman has patented something in this particular book, a comparison of copyright/patent law seems irrelevant.
Yes, I understand - however, the things you listed are irrelevant as well. Methods, processes, principles etc. are not covered by copyright, because they are supposed to be patented instead. But what they are refering to are only *scientific* methods etc. Only the things the patent office defines as methods etc. are excluded from copyright. Our internal definitions of those words are misleading us.

Magical "methods" are of an artistic nature, and should be treated as other artistic work.

User avatar
Tom Stone
Posts: 1333
Joined: January 18th, 2008, 12:00 pm
Location: Stockholm, Sweden
Contact:

Re: Hauntiques: "non-renumbered"...

Postby Tom Stone » April 22nd, 2007, 9:58 pm

David Alexander wrote:
The presentation of a magic trick is not viewed as a "play" under the law.
Don't worry, David. I'm not going to throw myself into this again :-)

Just curious; If not viewed as a "play" or "choreography", what is the presentation of a magic piece viewed as under the law?

It must be viewed as something, right?

Guest

Re: Hauntiques: "non-renumbered"...

Postby Guest » April 22nd, 2007, 10:03 pm

Tom, what I posted was clearly relevant to the topic at hand as some seem to have a problem understanding what is and is not covered by copyright. It's clearly relevant since the other half (the "is covered") had already been posted by someone else.

You rather selectively glom on to the term "methods" but an effect concept/method/process etc. could easily fall under some of the other(also not subject to copyright) standards. It's a far cry from only "scientific methods".

What Is Not Protected By Copyright

Ideas, Methods, or Systems are not subject to copyright protection.

Copyright protection, therefore, is not available for:

ideas or procedures for doing, making, or building things;

scientific or technical methods or discoveries;

business operations or procedures;
mathematical principles;
formulas, algorithms;

or any other concept, process, or method of operation.
I still do not understand Tom's rather odd (and seemingly completely irrelevant) attempt to link the two different concepts of patent and copyright law.


Magical "methods" are of an artistic nature,
That's a rather large assumption to make. One could easily take a magical method and use it in a non artistic way. Some would argue that's what many of us (including myself with my sad attempts at magic) tend to do anyway. ;)

Guest

Re: Hauntiques: "non-renumbered"...

Postby Guest » April 22nd, 2007, 10:25 pm

Dee wrote
If I took, say Spirit Theater, and adapted it verbatim into a stage play...would that violate copyright?
_____________________________________________

David repiled>>>>Probably not,>>>

OK, could I adapt The DaVinci Code into a stage play and perform it for money without getting the copyright holder's permission, without being in violation of the copyright?

In other words, would that be OK under US copyright laws?

D

Guest

Re: Hauntiques: "non-renumbered"...

Postby Guest » April 22nd, 2007, 10:31 pm

From "Bitlaw.com"

The Copyright Act grants five rights to a copyright owner, which are described in more detail below.

the right to reproduce the copyrighted work;
the right to prepare derivative works based upon the work;
the right to distribute copies of the work to the public;
the right to perform the copyrighted work publicly ; and
the right to display the copyrighted work publicly.

Anyone care to disagree?

D

Guest

Re: Hauntiques: "non-renumbered"...

Postby Guest » April 22nd, 2007, 10:35 pm

And again from Copyright.gov.

What Is Infringement?
Copyright is a bundle of exclusive rights. Section 106 of the copyright law provides the owner of copyright in a work the exclusive right:

To reproduce the work in copies;
To prepare derivative works based upon the work;
To distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
To perform the work publicly;
To display the copyrighted work publicly
In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

Done.
End of story.

Or was that copyrighted? ;)

P&L
D

Guest

Re: Hauntiques: "non-renumbered"...

Postby Guest » April 22nd, 2007, 10:37 pm

More relevant information from the U.S. Copyright site.

Copyright protection extends to a description, explanation, or illustration of an idea or system, assuming that the requirements of the copyright law are met. Copyright in such a case protects the particular literary or pictorial expression chosen by the author. However, it gives the copyright owner no exclusive rights in the idea, method, or system involved.

Suppose, for example, that an author writes a book explaining a new system for food processing. The copyright in the book, which comes into effect at the moment the work is fixed in a tangible form, will prevent others from publishing the text and illustrations describing the authors ideas for machinery, processes, and merchandising methods.

But it will not give the author any rights to prevent others from adopting the ideas for commercial purposes or from developing or using the machinery, processes, or methods described in the book.

Guest

Re: Hauntiques: "non-renumbered"...

Postby Guest » April 22nd, 2007, 11:03 pm

No Dee, you couldn't because The DaVinci Code is a different thing from Spirit Theater.

And thank you, Tom. ;)

Guest

Re: Hauntiques: "non-renumbered"...

Postby Guest » April 23rd, 2007, 4:37 am

While the copyright law debate may be entertaining (and may also prompt copyright law experts have any participated in this thread? to think of the verb to hirple as they read the exchanges), IMHO more interesting and relevant is the question of whether or not Mr. Chelmans reservation of exclusive public performance rights is, pardon the pun, binding on the purchasers of his book.

Contract is defined, in essence, by the relevant parties expectations. And for the courts, the enforceability of a contract is circumscribed by the reasonableness of their expectations. A courts determination of reasonableness depends on two general factors: (1) the parties specific conduct (their actions, writings and words), and (2) the culture in which the parties do business, live, work, play, etc. In most instances, the issue of reasonableness is very fact dependent and thus must be determined on a case-by-case basis.

A quick look at the Hauntiques website did not yield a disclosure of the performance rights reservation, but did yield the following promotional bit: 26 different effects, some ready to be inserted in your performances [emphasis added]. And among the testimonials: ... filled with exceptional stories that you can use [emphasis added] or adapt... and ... magical content that could keep you inspired and upgrading your magical work ....

If we combine the website advertising material with David Alexanders observation (Traditionally, magic routines that have been published ... have automatically granted permission for the work to be performed [by the purchaser of the publication]), Mr. Chelman might have a difficult time enforcing his reservation of performance rights against a U.S. purchaser of Hauntiques because he could not show that his expectations were reasonable: his book was sold without prior disclosure of the performance rights reservations, the books website (fairly) suggests to the reader that Mr. Chelmans routines may be used verbatim (for example, some ready to be inserted in your performances), and the current culture of magic publishing (at least in the U.S.) does not include such performance rights restrictions.

I agree with David that Mr. Chelman would have a much stronger argument against a U.S. buyer if his reservation of performance rights was clearly disclosed in advance of the purchase. Efforts to legally limit the manner in which a books material may be used by its purchaser are not without precedent. Think Harbin.

The foregoing is not intended to question the honesty, ethics and character of either Mr. Chelman or Marco Pusterla. I dont know Mr. Chelman, but I am acquainted and have done business several times with Marco and have found him to be a gentleman and a man of integrity.

Given DCs enforcement experience in France with his Flying illusion, it appears that, in countries like France, the exclusive right to perform a certain act does not derive from publication of such act, but from the artists creation and/or performance thereof. Viewed from this perspective, the statement in Hauntiques regarding performance rights reservations is merely an assertion of a right already in existence and entirely unrelated to the book. If thats the case, then perhaps Mr. Chelman would have the right to prohibit any verbatim performances of any of his acts private or otherwise, for remuneration or otherwise in which event his grant to the book owner of the right to privately perform any of his acts is a definite benefit. So maybe we Yanks shouldnt get too worked up over all of this, especially if ours is one of the few countries that dont offer comparable protection to artists.

CHS

P.S. Sorry, Dustin! Not pithy.

Guest

Re: Hauntiques: "non-renumbered"...

Postby Guest » April 23rd, 2007, 6:17 am

IMHO more interesting and relevant is the question of whether or not Mr. Chelmans reservation of exclusive public performance rights is, pardon the pun, binding on the purchasers of his book.>>>

Public performance rights are already reserved in the USA under US copyright laws. Mr. Chelman was simply reminding people of a right he held automatically. Whether or not he phrased it badly and made it seem like a post-purchase "contract" is irrelevant.

P&L
D
And no, David, taking Christian's original presentations and performing them without permission is no different from taking the DaVince code and performing it without permission.

User avatar
Richard Kaufman
Posts: 25328
Joined: July 18th, 2001, 12:00 pm
Favorite Magician: Theodore DeLand
Location: Washington DC
Contact:

Re: Hauntiques: "non-renumbered"...

Postby Richard Kaufman » April 23rd, 2007, 7:23 am

Dee, you're stubborn and willfully ignorant of the law. The best summation, which examines in detail some of the major issues, has been made by Clay, who is an attorney.
Case closed.
Subscribe today to Genii Magazine

Brad Henderson
Posts: 4158
Joined: January 17th, 2008, 12:00 pm
Location: austin, tx

Re: Hauntiques: "non-renumbered"...

Postby Brad Henderson » April 23rd, 2007, 7:30 am

Except that we have several hundreds of years of tradition in magic publishing that says otherwise.

Heck, personally, I agree. I would love to see magic tricks/presentations/routines protected like a play. I think in the long run it would cut down on variations, rip offs, and knock offs.

But, regardless of what we wish, there is reality.

And the reality is that in magic the purchaser EXPECTS to be able to use in performance the material purchased in any way they see fit. It even seems as if Christian/Marco even used that in their advertising.

So, if Christian wishes to reserve rights - to run counter the the well established history of rights associated with the purchases of a magical instructional texts - he needs to take steps to make that clear prior to purchase.

It's like the old skeptics adage: Extraordinary claims require extraordinary evidence.

Well, what Christian wants is (in our field) rather extraordinary, so he should have (if he were serious about it) taken extra steps to insure the buyers understood CLEARLY and BEFORE PURCHASE the terms he wished them to abide by.

If he does that on his next book, then I would stand by him 110%. But a little blub inside is not enough. Tradition wins.


Return to “Feature Articles”