Intellectual rights to magic methods

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Intellectual rights to magic methods refers to the legal and ethical debate about the extent to which proprietary or exclusive rights may subsist in the methods or processes by which magic tricks or illusions are performed. It is a subject of some controversy.

On one side, many magicians argue that methods represent "intellectual property" and that publication or sharing of methods should be subject to strict codes developed by magicians' organisations. On the other side, a range of people who are predominantly non-magicians argue that publication of information about methods should not be subject to restrictions because knowledge should be freely available. The sharing of magic methods with non-magicians or the open publication of methods is referred to in the magic community as "exposure" and many magicians react angrily to it.

1 Possible legal protection
- 1.1 Copyright and patents
- 1.2 Confidentiality and contract law
2 Court cases
3 Codes of practice
4 See also
5 References

[edit] Possible legal protection

There are a number of areas of law that might provide a basis for magicians to claim ownership of certain pieces of knowledge and to prevent exposure. However each area has its own limitations and loopholes.

[edit] Copyright and patents

Copyright and patents, along with trade marks, are the main way that most legal systems explicitly provide for the creation of intellectual property rights and their protection.

Copyright does not automatically subsist in a magic trick per se, or any outcome achieved by way of such tricks. For example, according to United States copyright law:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.^[1]

The description of how a magic trick is performed may constitute a work of art that can be protected by way of copyright. However, exposing or revealing an explanation for how a magic trick is performed generally does not constitute an act of copyright infringement. A possible exception is where an exact copy of a description, including details of a particular magician's stage adaptations of the trick, is divulged.

In practical terms, if a magician writes a pamphlet which describes how a trick works, the pamphlet will generally be subject to copyright, but the trick itself will not be. The magician would have the same exclusive rights in the written pamphlet as an author has in a book, but the magician would not be able to prevent people from doing what was described in the pamphlet.

Another potential area of copyright protection for magic creators is through a choreography or pantomime copyright. Although this has yet to be tested in actual case law, a magic effect arguably meets the legal definitions for choreography and pantomime.^{[citation needed]}

An invention or process which facilitates the performance of a magic trick is potentially patentable. However, applying for patent protection requires the public release of information about how the device or process works. Furthermore, when a patent is obtained, it can only be used to prevent a third party from making or using the subject matter of the patent, and could not be used to prevent anyone from revealing how the trick actually works.

Examples of patented inventions for conjuring include:

The theatrical effect of Pepper's ghost from the 1800s^[2]
John Gaughan's levitation apparatus, filed in 1993^[3]
Horace Goldin applied for a patent for Sawing a woman in half in September 1921 and was awarded U.S. patent number 1,458,575 on 12 June 1923. Although the patent provided protection against other magicians stealing his ideas it also aided people seeking to expose the method to the trick.^[4]^[5]

[edit] Confidentiality and contract law

Magic methods are effectively forms of trade secret and share many characteristics of trade secrets in other business sectors. As such there is a significant body of law that falls under the headings of "confidentiality" and "contract law" that might be used to control or protect them. These measures can effectively allow a perpetual monopoly in secret information - ie. it does not expire as would a patent or copyright.

A company or individual can protect their confidential information through non-disclosure contracts with employees or business associates. A magician might therefore ask a partner or fellow magician to sign a non-disclosure agreement before sharing magic methods. That contract could then be enforced through the courts. The terms of such contracts might be subject to constraints of employment law (for example including only restraint that is reasonable in geographic and time scope). As with law generally, there will be variations across jurisdictions.

Information which a magician has intentionally kept confidential and which is not in the public domain may also be deemed to have a legally enforceable quality of confidentiality. The exact legal definitions of circumstances in which such protection applies vary across jurisdictions, as do the remedies available.

[edit] Court cases

Court cases provide the ultimate test for any of the possible rights outlined above and, indeed, often establish law in the form of case law. There have been a number of court cases in which magicians have sought to assert rights to magic methods and prevent publications or broadcasts. These include:

André Kole tried to sue the makers of the Masked Magician television specials to prevent exposure of the Table of Death trick.^[6]
Horace Goldin was involved in many legal actions related to the Sawing a woman in half illusion, including at least one against the makers of a film that exposed the method for one version of the trick.^[7]

[edit] Codes of practice

The most effective protection against the public exposure of magic methods may be a matter of ethics or peer pressure. One of the largest societies of magicians in the world, the International Brotherhood of Magicians, has a Code of Ethics which states:

All members of the International Brotherhood of Magicians agree to oppose the willful exposure to the public of any principles of the Art of Magic, or the methods employed in any magic effect or illusion.^[8]

The Brotherhood advises that any individual who is a professional or amateur magician should be aware that "exposing" the methods of an illusion may result in damage to their relations among other magicians.

However, such codes don't extend to selling magic, so the ideas of ethics and protection are inextricably linked with the desire to make money where it suits the magicians involved. As such the apparently ethical practices of such organisations need to be viewed in a broader light than merely approaching the situation from the viewpoint of the magician.