F. Jay Dougherty, Loyola Law School (Los Angeles), is publishing Now You Own it, Now You Don’t — Or Do You?: Copyright and Related Rights in Magic Productions and Performances after Teller V. Dogge in Non-Conventional Copyright--Do New and Atypical Works Deserve Protection? (Nicola Lucchi and Enrico Bonadio, eds., Elgar, 2018) (forthcoming).
Derek DelGaudio is a successful magician, who is noted for theater productions such as “In and of Itself” that embed magic illusions in a more complex narrative, portraying character and evoking strong emotions from his audience. One review stated: “In & Of Itself makes the case for the art of magic with the power of storytelling. Derek DelGaudio isn’t just performing magic tricks but presenting a moving deeply personal and compelling narrative, using magic as a metaphor to reach a deeper truth.” It is clear that dramatic works are protected by copyright, but the creations and performances of magicians are among the types of expression at the edges of copyright and other intellectual property protection. There are many types of intellectual property law that may provide protection to some magic illusions and productions. This article will explore potential copyright protection for such creations and performances. The tricks and illusions of a magician, if novel, useful and non-obvious, are protectable by patent. But magician inventors may be reluctant to obtain patents, because, as part of that process, the specifics of the invention must be disclosed to the public, including competing magicians. If not patented, the secrets behind those tricks and illusions, having commercial value and being maintained as secrets, may receive protection as trade secrets. The basic requirements for patent and trade secret, along with their limiting doctrines, limit the value of those doctrines in protecting magicians. That, coupled with limits on potential copyright protection, has led magicians to seek to protect exclusivity in their magic pieces through custom or, at times, through consensual self-regulation.
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