As part of the Law and Literature symposium, Taking Oz Seriously, held at Albany Law School in November 2009, this Essay focuses on the life of Matilda Joslyn Gage, mother-in-law of The Wonderful Wizard of Oz author, L. Frank Baum. It also uses the text of The Wonderful Wizard of Oz, to explore the nature of power (or the illusion of it) and hierarchy, especially in organizations which seek progressive objectives. It examines power and the means used for its maintenance in Oz. The Essay provides some basic analyses on the operation and maintenance of hierarchy. In this regard, this Essay might be viewed as the next phase of the theories identified in The Paradox of Hierarchy – Or Why We Always Choose the Tools of the Master’s House, New York University Review of Law & Social Change, Vol. 31, p. 627, 2001.
This Essay also provides a comparison between fantasy and reality and explores the complexities of hierarchy in real historical context. The Essay includes a short biography of the life of Joslyn Gage, especially pointing out her contributions to woman’s equality and history, and detailing her advocacy against Christian witch-hunts. The text applies lessons learned from the nature of hierarchy to give insight into how Joslyn Gage came to be omitted from history. Contemporary examples, including references to Frederick Douglas, Francis Willard, and Ida B. Wells, are used for comparison and support of the general theories of hierarchy. Encompassing the overall discussion are musings about the role of fantasy and activism in finding real change.
An analysis of law (or the lack of it) in "Harry Potter and the Deathly Hallows, Part I" written by Nick Moline here. Mr. Moline takes up wizarding law in the film, rather than the book, and begins,
In Deathly Hallows, Harry Potter finds himself Undesirable No. 1, a fugitive of the law, as the government of the Wizarding World has been taken over by the evil Lord Voldemort. This is not the first time that Harry has found himself at odds with Wizarding Law. In honor of the movie, I am going to look at the laws and legal system of Harry’s world. So, let’s hop aboard the Hogwarts Express to take our introductory course in Wizarding Law at Hogwarts.
Continuing with the trade secret theme, for a famous trade secret case, check out the Glazer v. Hoffman case, which the Florida Supreme Court decided in 1943. Charles "Think-a-Drink" Hoffman asked for an injunction against Maurice Glazer, alleging that Mr. Glazer "held himself out as a magician and performer and acted under the name of "Think-a-Drink Count Maurice" and "Have-a-Drink Count Maurice"; and that several acts and performances are imitations and violations of the rights of the plaintiff, resulting in an infringement, breach and violation of his rights and to the detriment and damage of the plaintiff."
Mr. Hoffman claimed that "as a result of great labor, time and efforts, developed and originated a performance by which he produced real, straight or mixed drinks or beverages, such as high balls, cocktails, liquors, zombies, coffee and ice cream sodas from metal cocktail shakers which were shown to be empty and from beakers filled with water, which drinks were thought of or requested by members of his audiences; that beginning with 1935, after the development of the performance, plaintiff entertained with and played it before many audiences throughout the United States; that the performance was preceded by an "address" written or produced by the plaintiff, which was on March 18, 1938 Copyrighted to Charles Hoffman under the title of "Think-a-Drink Hoffman" by the registrar of copyrights of United States of America under certificate numbered 9415."
We find in the record copyright protection only to the address or professional "patter" of plaintiff below delivered prior to the act or performance but it fails to embrace or include his sleight of hand performance whereby the thirty odd drinks are produced from "seemingly" empty beakers. Plaintiff below represents that the stunt is a child of his brain, created by heavy investments of time and labor and therefore is an intellectual production protected by the common law. He cites and relies upon the principle of law enunciated in Waring v. WDAS Broadcasting Stating, 327 Pa. St. 433, 194 Atl. 631; Waring v. Dunlea, 26 Fed. Supp. 338; Gardella v. Log Cabin Products Co., 89 Fed. (2nd) 891; Chaplin v. Amador, 93 Cal. App. 358, 269 Pac. 544; Fisher v. Star Co., 231 N.Y. 414, 132 N.E. 133, 19 A.L.R. 937, and annotations p. 949 et seq.; Ferris v. Froham, 223 U.S. 424, 56 L. Ed. 492, 32 S Ct. 263; International News Service v. Associated Press, 248 U.S. 215, 63 L. Ed. 211, 39 Sup. Ct. 68, 2 A.L.R. 293, and similar cases.
In the case of Serrana v. Jefferson, 33 Fed. 347, the Court held that a mechanical contrivance consisting of a real tank, into which real water was made to flow and running thence off underneath the stage, representing a bridge above, not being a link in the chain of incidents which, together with the speech and action of the performance, is not such a mechanical contrivance as entitled it to protection by copyright.
The case of Fuller v. Bemis involved an infringement complaint. The act consisted of a stage dance illustrating the poetry of motion by a series of graceful movements, combined with an attractive arrangement of drapery, light and shadows. While the idea may be "pleasing," said the Court, it is not such a dramatic composition as to bring it within the meaning of the copyright act. See Barnes v. Miner, 122 Fed. 480; Chappell & Co. v. Fields. We therefore conclude that the plaintiff below failed to bring his act or performance within the terms of the Federal copyright statutes.
It is true that an author at the common law has and owns a property right in his intellectual productions prior to publication or dedication to the public. See 18 C.J.S. par. 4. p. 139. Protection of these common law rights, after publication, is given under well defined conditions and circumstances, but the general rule is that an owner of literary or intellectual property terminates his private interest or common law rights by publication, which operates as a dedication and termination of his private rights. See 18 C.J.S. par. 13, pp. 150-1.
The record disclosed that Charles Hoffman, known as "Think-a-Drink-Hoffman," acted and performed his sleight of hand tricks or stunts before many audiences since 1935. He is not protected by the terms and provisions of the Federal copyright statutes. On this record the conclusion is irresistible that these several acts and performances are not only a publication but a dedication to the public of the trick. When the plaintiff below, Mr. Hoffman, was on the witness stand, counsel for the defendant below, on cross examination propounded the question viz: "What I mean is, is this act performed by means of mechanical contrivance or equipment, or use of sleight of hand?" A. "I think if I told you that I would be telling my trade secret."
Encyclopedia Britannica, Vol. 6 (14th Ed.) pp. 260-264, classified sleight of hand performances as "conjuring." In the case of Cooper v. Livingston, 19 Fla. 684, we held that "conjuring" over a sick man to make him well is not such a consideration for a promissory note as may be sustained in a common law action. The asserted common law property right of the plaintiff below in and to the sleight of hand performance as described in the record appears to have been by him duly published and dedicated to the public by his several public acts and performances before the public, and thereafter immediately the trick or stunt became the property of the general public, and the defendant below had a lawful right to use the same, provided he did not infringe upon the trade name of the plaintiff below. The copyright privilege involved here, as well as the alleged common law property right, is not governed by the provisions of Sections 543.01 to 543.35, Fla. Stats. 1941.
Plaintiff below points out that he had used the trade name of "Think-a-Drink-Hoffman" for several years at a number of theatres in many States of the Union and as a result had obtained a high standing as a performer in the amusement world, thereby resulting in substantial remuneration; that the defendant below, under the trade name of "Think-a-Drink Count Maurice" or "Have-a-Drink Count Maurice" was attempting to perform the same act and his inferior imitations of the plaintiff were such that they were calculated to bring him and his business into disrepute and showing financial losses and irreparable injuries unless restrained by a court of equity. McGhan v. McGhan, 115 Fla. 414, 155 So. 653, and Table Supply Stores v. Home Supply Stores, Inc., 115 Fla. 188, 155 So. 317, are cited and relied upon.
In the case of Gottdiener v. Joe's Restaurant, Inc., 111 Fla. 741, 149 So. 646, we held that the right to use one's own personal name in a business is subject to established rules in regard to unfair competition. The law requires a person to use his own name, not as a means of operating upon the good will and reputation of a rival by passing off his goods or business as the goods or business of his rival who gave the name its reputation and value. Likewise, a person in not permitted to use even his own name with fraudulent intentions of appropriating the good will of a business established and built up by another person of the same name. Losses in a financial manner cannot thusly be inflicted on a rival competitor. See children's Children's Bootery v. Sutker, 91 Fla. 60, 107 So. 345, 44 A.L.R. 698; El Modello Cigar Mfg. Co. v. Gato, 25 Fla. 886, 7 So. 23, 6 L.R.A. 823, 23 Am. St. Rep. 537.
It is reasonable to assume that the words "Think-a-Drink Count Maurice" may by the general public be recognized or considered the same as "Think-a-Drink-Hoffman" and therefore properly restrained by the terms of the final decree, while the use of the words "Have-a-Drink Count Maurice" would probably impose a contrary view or meaning to the general public.
We therefore conclude that the part of the final decree permanently restraining the defendant below from using (a) the copyrighted address delivered to his several audiences by plaintiff prior to his performance of his trick and referred to a professional "patter," and (b) the use of the trade name "Think-a-Drink-Count Maurice" should be and each are hereby affirmed, but reversed in all other respects for further proceedings in the lower court not inconsistent with this opinion. Affirmed in part and reversed in part.
It is so ordered.
The Florida Supreme Court upheld Mr. Hoffman's trade secret claim but not his copyright claim, finding that copyright law could apply only to those parts of his act denoted "patter" and not to the "sleight of hand," which we would call the performance. The magic words of intellectual property law did not assist him in protecting what he considered to be his signature performance. Here's more on the illusion most identified with him from the Chamber Magic Blog.
November 18th's The Defenders episode "Whitten v. Fenlee" combines law and magic in a classic way. Penn Jillette and a number of other magicians guest star on the episode that includes a story about a blogger who reveals the secret to a leading Vegas magician's (Justin Willman) signature illusion. What's particularly interesting about this episode is the misdirection and sleight of hand that Pete Kaczmarek engages in, first in attempting to convince the court that the Nevada shield statute should apply to bloggers (which is good lawyering) and second that his surprise witness is really discussing whether a particular illusion is a trade secret, when he's actually discussing whether or not it has been published or not (maybe this illusion is the cups and balls played with legal theories and the viewers).
Magician Colin Pettigrew claims that blogger Aron Ayles violated Nevada's Trade Secrets Act.
NRS 600A.030 Definitions. As used in this chapter, unless the context otherwise requires:
1. “Improper means” includes, without limitation:
(d) Willful breach or willful inducement of a breach of a duty to maintain secrecy;
(e) Willful breach or willful inducement of a breach of a duty imposed by common law, statute, contract, license, protective order or other court or administrative order; and
(f) Espionage through electronic or other means.
2. “Misappropriation” means:
(a) Acquisition of the trade secret of another by a person by improper means;
(b) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(c) Disclosure or use of a trade secret of another without express or implied consent by a person who:
(1) Used improper means to acquire knowledge of the trade secret;
(2) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was:
(I) Derived from or through a person who had used improper means to acquire it;
(II) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(III) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(3) Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
3. “Owner” means the person who holds legal or equitable title to a trade secret.
4. “Person” means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.
5. “Trade secret” means information, including, without limitation, a formula, pattern, compilation, program, device, method, technique, product, system, process, design, prototype, procedure, computer programming instruction or code that:
(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by the public or any other persons who can obtain commercial or economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
NRS 600A.055 Misappropriation and posting or dissemination on Internet: Effect. A trade secret that is misappropriated and posted, displayed or otherwise disseminated on the Internet shall be deemed to remain a trade secret as defined in NRS 600A.030 and not to have “ceased to exist” for the purposes of subsection 1 of NRS 600A.040 if:
1. The owner, within a reasonable time after discovering that the trade secret has been misappropriated and posted, displayed or otherwise disseminated on the Internet, obtains an injunction or order issued by a court requiring that the trade secret be removed from the Internet; and
2. The trade secret is removed from the Internet within a reasonable time after the injunction or order requiring removal of the trade secret is issued by the court.
Ayres tells Pete that a source gave him the information and refuses to reveal that person's identity. Nevada's shield law does not list internet or other media specifically and the legislature has not updated the statute since the seventies.
NRS 49.275 News media. No reporter, former reporter or editorial employee of any newspaper, periodical or press association or employee of any radio or television station may be required to disclose any published or unpublished information obtained or prepared by such person in such person’s professional capacity in gathering, receiving or processing information for communication to the public, or the source of any information procured or obtained by such person, in any legal proceedings, trial or investigation:
1. Before any court, grand jury, coroner’s inquest, jury or any officer thereof.
2. Before the Legislature or any committee thereof.
3. Before any department, agency or commission of the State.
4. Before any local governing body or committee thereof, or any officer of a local government.
When Pete says that "Nevada's shield law is one of the most liberal in the country," he seems to be quoting language from the Diaz case (2000). "Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 94 (Nev. 2000). “Nevada's news shield statute is one of the most liberal in the country. The statute confers upon journalists an absolute privilege from disclosure of their sources and information in any proceeding.” That assessment may have been true ten years ago, but other states have surpassed Nevada since, including California, which has an Evidence Code Section (1070(a)) that reads
A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. (b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. (c) As used in this section, "unpublished information" includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.
The California Constitution also protects reporters. In O'Grady v. Superior Court, a California Court of Appeals ruled that the California shield applied to bloggers. The issue? Quashing of a subpoena issued to a website publisher to compel disclosure of a source in order to reveal information relevant to the publication of trade secrets. You betcha.
Admittedly, members of the California press have added constitutional protection not available to Nevada media. But Pete's attempt to present his client as a reporter entitled to the reporter's privilege was just silly because the New York Times asserts that it is moving into the online world. What kind of an argument is that? However, obviously, the legal arguments aren't the point. The point is getting to the fun of presenting Penn Jillette as Reuben Charters, the mysterious source who provided Ayles with information about Pettigrew's trick. The issue is whether Pettigrew's trick is original, therefore protectible as a trade secret, or simply a variation of an illusion generally known in the profession. Charters, both as a witness and as a expert in magic, testifies that it is a variation of a trick that he, Charters, knows Pettigrew learned from a rare book on magic Charters showed him when Pettigrew was a boy. Charters later sold Pettigrew the book. What's not clear to me is whether Charters (and Pete) are discussing the issue of what is generally known to magicians (those in the trade) with what information is available in a rare book (the origin of the illusion). Whether or not Pete can find magicians willing to testify to the origins of the illusion (and the magicians he interviews won't so testify) is one thing. The magicians he talks to assume that the trick is original because they don't know that it isn't, and this lack of knowledge is a problem legally. Since knowledge of the illusion, and thus knowledge of the illusion in the trade is lacking, showing that it is not a trade secret is going to be difficult. Once the magicians Pete speaks to acknowledge that they think the Pettigrew illusion is original, where is he going to find a group of magicians who think it is not?
Knowledge of the illusion is another issue. However, what remains unclear to me is whether Pettigrew performs the illusion as the rare book describes it or whether he actually adds to the illusion, thus creating something new. If he performs it as described, and that is the illusion other (theoretical, as yet undiscovered) magicians are familiar with, then it's not a trade secret, whether or not other magicians know about the rare book. If, however, he adds something new to the illusion that is published in the book, then he may have something that, it seems to me, is potentially protectible. What Charters has done is explain to Ayres how Pettigrew does the trick based on the illusion as explained in the book (or, if he has seen Pettigrew's new illusion, he has explained that). If this explanation corresponds to how Pettrigrew still does it, then of course Pettigrew hasn't essentially changed the "doing" of the trick and it explains why Pettigrew is so miffed. The bells and whistles Pettigrew has added are just that. Charters seems to be saying that Pettigrew is only performing the illusion as published in the book; thus it is not a trade secret, and the judge so finds. But I'm still troubled by the fact that the magicians Pete interviews do not know of the illusion. If the illusion is unknown in the trade generally, then it seems to me it's a trade secret. That Reuben knows of the illusion doesn't change matters. He is only one person who knows. That doesn't seem to me to be enough to change the status of the illusion from protectible to not protectible as a trade secret, given the facts that we have here.
But I'll stop here, since some of the facts in the episode are lacking, and the show is really about putting Penn front and center, and not a lecture about IP law. Let's move on to another issue. While Pete asks questions of Charters that give the impression that Charters is testifying as an expert witness, Charters cannot possibly be testifying as one. Expert witnesses cannot simply turn up on the spur of the moment. Counsel vet them, and opposing counsel also have the opportunity to examine them. Charters is actually testifying as Ayles' source, although he has interesting information to provide as a person who knows about the history of secular magic. In addition, he is a surprise witness--therefore again, not an expert witness. Opposing counsel should have to time and the opportunity to prepare questions to ask Charters about his prior association with Pettigrew, and his motive in revealing the trick to Ayles. He certainly seems to have an axe to grind. Charters' language about Pettigrew's small-mindedness and comment about all magicians "standing on the shoulders of giants" (especially amusing coming from the 6 foot five inch Jillette) smacks of a certain amount of anger toward Pettigrew. Pettigrew's attorney is entitled to investigate.
Now, his prior association with Pettigrew and his opinion that Pettigrew has behaved badly probably won't mean that Ayles loses. But Pettigrew's lawyer should at least have a chance to inquire. Finally, the terminology that the judge uses in dismissing the case seems a tad odd. What's at issue seems to be a subpoena, even though the judge has denied the motion to dismiss. Shouldn't the judge be quashing the subpoena, since the source himself reveals his identity? Therefore there is no more need for Ayles to reveal his source. But he doesn't actually do that. Ultimately, it may not matter, since the underlying cause of action is the action for the disclosure of a trade secret and the judge dismisses that.
I'm also not overly thrilled with Nick's magic trick in the final scene, in which he "disappears" Pettigrew's bill for tickets to his show. The implication is that Nick doesn't want to pay for the tickets. Is he suggesting that since Pettigrew lost the action, the tickets should be free? That they should be part of Pete's fee? Why? Is Nick suggesting that somehow his action is morally equivalent to Pettigrew's in "stealing" the illusion from the book he bought from Reuben Charters? But that analogy falls flat. Pettigrew stole nothing, and all he tried to do was argue in court that the illusion he found, and presumably improved upon was a trade secret. He lost. If none of that is true, that is for his adversary to bring out in court. As I suggest above, perhaps the case could have gone the other way. Nick argues a couple of times in the episode that he doesn't like the practice of exposure--of disclosing how magic tricks are done. That's fine. That's his position. Does he take the position that depriving others of their wages or fees is legal or ethical? And even if he thinks it's ethical or legal to do so as far Pettigrew is concerned, what about with regard to the people who work for or with him?
The performance is separate from the lawsuit, and Nick knows perfectly well that lawsuits are not about morality. As far as we know, tickets to the performance were not part of any outside settlement and the judge said nothing about tickets to the performance. Why should Nick not pay for them? "Vanishing" them makes Nick look devious and well, like a thief, and reinforces the idea that lawyers work magic to create results that are unfair. Unless Pettigrew originally promised free tickets, he has every right to expect that Nick and Pete pay for the tickets. They don't ordinarily work for free, although many lawyers do pro bono work simply as a commitment to the profession. Why should Colin Pettigrew?
According to one of the Sexy Beast's interviewees, "shoppers who wait until after Dec. 9 will get stuck with faulty products or presents that no one wanted in the first place. By mid-December, holiday travelers will be hit with bad weather, mechanical errors and possibly, terrorist threats. Wars may break out, marriages will dissolve, people will lose their jobs and, as astrologer Gahl Sasson put it, “the whole planet is going to have Tourette’s syndrome.”" Yikes.
Apparently, among the best advice astrologers consulted have is to finish shopping early. Think practical. Buy gift certificates, not electronics, which I suppose could break down (although they do that even when Mercury isn't in retrograde. And what about the years when all this stuff happens and Mercury isn't in retrograde? I don't understand). Don't overdo. Be flexible.
All good advice. But on the other hand, don't psychologists give out similar advice every holiday? See Relationship advice for the holidays here, travel advice for the holidays here, and depression busters here. Oddly, Mercury in retrograde is not mentioned in any of them.
Carry on. I wish you and yours a wonderful non-denominational gift-giving occasion.
In 1894, French psychologist Alfred Binet published an article on the psychology of conjuring. By observing five magicians perform in his laboratory, he was hoping to gain a better understanding of the psychological processes responsible for inducing illusions in an audience. This article focuses on the subjects of these experiments and their world. It attempts to explain why five men belonging to a profession in which secrecy was vital agreed to enter the laboratory and reveal their tricks. It argues that magicians saw themselves as men of science and that, by entering Binet’s laboratory, they were responding to an opportunity to participate in a world to which they wished to belong.