Originally posted by Richard Kaufman:
Generally, you can always make another copy of anything you buy for your own use. It's a different story if you want to make them up to sell, which can be against the law depending upon the item and who owns it.
I'm no lawyer, but a person who has tried to
educate himself on these issues. There are 4 general categories of intellectual property which the law gives protection to.
2. trade secrets
1. Very little of what magicians would like to protect is covered by trademark (Abbott's might protect their rabbit logo, RK might wish to protect the Genii design). But tricks, routines, etc. aren't covered by TM or service marks or related concepts.
2. Copperfield requires road crews, etc. to sign secrecy agreements, and may protect what he does through civil suit if the other parties violate those agreements. But that is his only avenue, and the concept is basically one of contract law.
To protect your ideas under trade secrecy law, you must actively attempt to keep it a secret -- if you sell it in notes, or book, or video form, then you have disclosed them openly and they are no longer trade secrets (unless you through contract or other signed agreements attempt to control further dissemination, as did Harbin with the original Zig-Zag illusion).
3. Patent -- many tricks, devices, methods, etc. might be protected by patent, but it is not cost effective to do so for most (however, search a patent website for John Gaughan's methods of simulating levitation, and then consider Copperfield's Flying illusion). Patent law provides for penalty for violation (again, throug lawsuits in civil court). It is for a limited duration (17 - 25 years??) and may be renewable once, I think. It does not provide secrecy -- the price one pays for exclusivity and control of rights is public disclosure, so that others may build on your work.
4. Copyright is the intellectual property right which is most easily obtained -- an author obtains copyright upon expression of an idea in tangible form (writing a manuscript, recording a video, etc.). It is more easy to protect that right (sue violators) if it is registered at the copyright office (send a copy to the Feds, fill out a form, pay a registration fee). Copyrights last a long time (author's life plus many years), and may be passed to heirs.
But it only allows the owner to limit copies being made of his expressed tangible idea (long quotes or photocopies of a manuscript, copies of videos or DVDs, etc.). If you devise a presentation of a trick, copyright does not mean someone else cannot use that presentation, unless they quote substantial portions of your patter directly (and what "substantial" means is, again, a matter for civil courts). You cannot copyright plots, methods, routines, tricks, illusions, etc.
I can perform Snowstorm in China as much as I like, unless I use (verbatim) another magician's patter, or build my own version of the various gimmicks (_if_ they have been patented -- if they haven't, then I can build them). I can do likewise with the signature routines of most magicians, because they haven't taken the steps to legally protect them (patent illusions like interlude, or control via trade secret agreements). Unfortunately, most of what magicians would like to consider intellectual property isn't really "property" under the law.
The recent stink over a magician performing Max Maven's routines is a good example. The guy is a turd, and should be avoided by all who respect the craft and its important creators and innovators, but what he is doing is most likely legal.
Like I said, I'm no lawyer, and I would love for some magician who is trained in the law to pick apart what I've stated (Darwin Ortiz, where are you???) But it is a sad truth that most magic ethics are based on mutual respect and people trying to do what is _right_, rather than based in civil, criminal or contract law. For those limited cases where law might provide protection, it is unfortunately seldom cost effective to do anything about it.
Bottom line -- it is most likely legal to make your own rough and smooth deck, but if you want to be sure, get a lawyer.
[ October 04, 2001: Message edited by: bill mullins ]