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' organizations. 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.
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[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
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 may not automatically subsist in a magic trick per se, or any outcome achieved by way of such tricks; according to the Berne Convention, member states are free to prescribe in their national legislation that copyright is automatically granted to a work only when it is "fixed", that is, written or recorded on some physical medium.
The idea-expression divide specifies that mere ideas are not entitled to copyright, only the expression of those ideas. In practical terms, if a magician writes a description of how a trick works, such as a pamphlet, the description 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 or prevent distribution of other expressions of the same idea, such as another completely different pamphlet written by another author describing the same trick.
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.[citation needed]
[edit] Patents
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. This prevents other magicians from performing the trick but cannot be used to prevent anyone from revealing how the trick works.
Examples of patented inventions for conjuring include:
- The Quick-change magic trick under the U.S .Patent number 6,308,334
- The theatrical effect of Pepper's ghost from the 1800s[1]
- John Gaughan's levitation apparatus, filed in 1993[2]
- 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 using his ideas it also aided people seeking to expose the method to the trick.[3][4]
[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.[5]
- 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.[6]
- Japanese magicians sued local TV networks for exposing coin tricks. [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, though magicians consider the selling of a magic trick to prove that the purchaser intends to learn and perform the trick for others, thereby becoming a magician, rather than simply wanting to know how a magic trick is done out of curiosity.
[edit] See also
[edit] References
- ^ United States Patent No. 187,884, February 27, 1877 "Improvement In Apparatus For Producing Optical Illusions". Google. Retrieved on 2007-03-12.
- ^ United States Patent No. 5,354,238, October 11, 1994 "Levitation apparatus". United States Patent and Trademark Office. Retrieved on 2007-03-12.
- ^ Illusion Device. Google. Retrieved on 2007-04-03.
- ^ US Patent 1,458,575. United States Patent and Trademark Office. Retrieved on 2007-04-03.
- ^ LA Superior Court BC190153, Robert J. Gurtler aka Andre Kole v. Nash Entertainment, Bruce Nash, Fox Broadcasting Co. Entertainment Law Digest. Retrieved on 2007-03-05.
- ^ Goldin v. Clarion Photoplays, New York (Dec 1922), referenced in Yale Law Journal, Vol. 32, No. 2, p.201, and also in Advanced Torts: Cases and materials, (Law Casebook Series), Carolina Academic Press, (2007)
- ^ Magicians sue Japan TV networks. BBC. Retrieved on 2007-05-01.
- ^ The International Brotherhood of Magicians (anti-exposure) code of ethics. Retrieved on 2007-03-12.
