Should you still use material that you've sold?

[JHostler]

Digressing a bit…

So, if I jot down this idea on a napkin or - heck - simply conceive of and perform a new sleight or magic effect in the privacy of my own home, I'm granted automatic copyright protection??? For those who think this a grossly facetious characterization of Mr. Stone’s position, I suggest re-reading his previous posts in full.

Even if it did work like this in Sweden, it still doesn't in the US... before or after 1989. Any reasonably in-depth reading of the Berne Convention reveals a decidedly more grounded set of guidelines and exceptions:

1) Berne requires its signatories to recognize the copyright of works of authors from other signatory countries in the same way as it recognizes the copyright of its own nationals. This means something published in Sweden would be protected in the US per US standards.

2) Copyright under the Berne Convention is "automatic" in that it prohibits a formal registration requirement. In fact, it is a matter for legislation in the countries of the Berne Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.

3) The author of a literary or artistic work must affix his/her name to the work (even if a pseudonym) – and this fixture is only valid in the absence of proof against origination.

Interested readers are encouraged to peruse Articles 2 and 15 for themselves. I am not an attorney (paging Dr. Farmer), nor do I play one on TV: http://www.wipo.int/treaties/en/ip/bern ... wo001.html

With regard to the treatment of discrete sleights as pantomime or choreography under current copyright law: the law’s explicit exclusions (procedure, process, etc. etc.) would seem to rule this out, prima facie.

[Tom Stone]

So, if I jot down this idea on a napkin or - heck - simply conceive of and perform a new sleight or magic effect in the privacy of my own home, I'm granted automatic copyright protection

That is what automatic means.

With regard to the treatment of discrete sleights as pantomime or choreography under current copyright law: the law’s explicit exclusions (procedure, process, etc. etc.) would seem to rule this out, prima facie.

This seems to be the biggest obstacle.
If we use the common every-day definitions of those words, then everything that can be broken down into steps and be referred to as "procedure", and nothing can have copyright. Evidently, things that can be descibed as a procedure have copyright just the same. How is that possible?

Would you agree that the following need to be cleared up, before it is even possible to continue? That these questions need to be answered?

1: Are the "procedure, process, etc." that copyright refer to identical to the "procedure, process, etc." that is spoken of within patent law, or do they lack all connections?
2: Do the "procedure, process, etc." have the identical definition within copyright law as those words have in daily speech, or are the definitions different in any way?

I contend that those words have a very different meaning within IP law, than in daily speech. If I am wrong on this, then all my other arguments are moot. (And rapper Clifford Smith would find himself in a nightmare)

[Tom Stone]

John's link got corrupted. Again:
http://www.wipo.int/treaties/en/ip/bern ... wo001.html

[Jonathan Townsend]

From the Berne treaty:

Article 2
Protected Works:
1. “Literary and artistic works”; 2. Possible requirement of fixation; 3. Derivative works;
4. Official texts; 5. Collections; 6. Obligation to protect; beneficiaries of protection;
7. Works of applied art and industrial designs; 8. News

(1) The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

Tom, maybe some here don't want to consider what dumbshow or choreography mean. Perhaps they wish to reproduce other people's performances in public while hiding behind "secret". IMHO their deodorant of ignorance has failed.

Just don't sing "happy birthday" in public.

[Ken Becker]

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.

Merci!
Ken B

[JHostler]

Jon - The Berne guidelines cannot be cherry-picked or piecemealed with much validity. You’ve got to read and absorb the whole thing. The Convention grants quite a bit of discretion to participating countries. Additionally, your definition of “choreography” seems to include any and all types of physical motion carried out in the execution of an artistic performance. That is simply not true, either technically or in common usage. As you’ve already made up your mind, however, I shan’t argue the point further. You and Tom carry on.

[Jonathan Townsend]

John, folks,

If you were to film a performance of a routine, write out the script with blocking, call it "the effect" at the start of your book item... IMHO the same thing - a fixed form and protected as such. Notice this has nothing do with methodlogy used in performance, be it CGI on the film, a specious method writeup or even several different technologies to be used as the performer sees fit - it's the same to the audience. Does it matter whether the actors in a play really have read hair and shaved heads or is it okay for them to wear wigs and makeup as per the character descriptions (see earlier references to Miller's in-depth inner work in Salesman's script).

Going to "performer's view" we have specific choreography and gesture designed and easily verified by utility of function. IE if you do the actions correctly you also get the results of the sleights or strategies. The results verify the correct performance of the choreography.

No cherries picked here. Or whipped cream pies put in anyone's face.

JonT

[Brad Henderson]

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.

1) Whenever this topic comes up, we find ourselves in the same place. It does not help that many seem to advocate a "as the law doesn't protect us, there is nothing we can/should do about it" attitude. As we seem reluctant to entertain the notion that perhaps we as an industry should create a viable statement of "best practices" we will never move forward. Every situation which arises will be judged not by any measure of right or wrong or what might be good for the art, but instead on the popularity of the perpetrators and the desire of the jury to have access to ill gotten goods. At best it's mob rule, and often the mob has interests more self serving that high minded. Take the recent wms incident as one example.

2) while the people you mention may have not made their living performing magic for laymen, one would be remiss to ignore the fact that all those active in my lifetime have made money selling, performing, and lecturing for magicians. I think it does the debate a disservice to imply that these people's attitude toward ip issues are the same as others who may also be called amateur.

3) no one claimed that the ethical outlook of a pro was "higher" than that of an amateur other than you. The point is, their position may be informed by different values. It is unfortunate that any discussion that calls attention to the different degree of involvement with magic usually ends up antagonistic. history reveals this to be true.

Regardless, the needs/desires of the kid who exposes magic on YouTube will be different from someone who makes their living performing for the public, and their needs will be different from those who sell magic to other magicians and those who simply do magic because they love it. I happen to believe magic is a performance art and that we should adopt practices which encourage artistic participation within magic. as such I support a code of ethics which preserves and respects history while encouraging and protecting innovation. Is this a "higher" code of ethics than one which might suggest (as we have seen advocated on the cafe) that everyone should be allowed to do any material they come across? I'm not saying it is or it isn't. The answer to that question is the booby prize. But Tom is correct when he points out that the amateur , the performing professional, and the magic creator cum artist formerly known as dealer often have conflicting value systems. We should take that into account when we are considering ideas, who they affect, and how.