Another interesting piece on the possibility (or not) that copyright law can protect magicians' intellectual property.
Jenny Small, The Illusion of Copyright Infringement Protection, 12 Chi-Kent J. Intell. Prop. 217 (Summer 2013). Here are the first few paragraphs of the article.
The schism between knowing and seeing may be magic's allure, but when the magician sees a fellow entertainer perform his signature trick, he wants to know that the law affords him protection. Law, like magic, revolves around expectations. Magic defies one's expectations, but law secures them. Yet, in the realm of copyright law, magicians' expectations for protection are unclear.
As a teenager, Raymond Joseph Teller, of Penn & Teller, envisioned an illusion never before seen. He perfected the trick, and it became known as his signature "Shadows." In the trick, a vase with a rose rests upon a stool and its shadow projects onto a wall. Teller, the "murderer," approaches the shadow $=P218 with a knife, and, as he cuts the petals of the shadow, the real rose petals fall. In 1983, after performing the trick for about seven years, Teller submitted it for copyright registration, using a cartoon-like diagram with a description of the setting, characters, and action. In copyrighting his illusion, he attempted to protect his labor without revealing the secret behind the act.
Until 2012, Teller was the only person to have performed this trick. In that year, however, the video "A Rose & Her Shadow" appeared on YouTube. In the video, Gerard Dogge (alias Bakardy of Los Dos de Amberes) used a knife to cut a projected rose's shadow. Dogge allegedly figured out the secret behind Teller's trick and either devised another way to create the illusion or used video editing to make an audience believe that he could perform the trick. Dogge concluded the video with an offer to sell the trick's secret for 2,450 Euros ($ 3,050). After a failed attempt to negotiate with Dogge, Teller sued him for copyright infringement.
Teller's case represents two emerging legal complexities--the struggle to protect the intellectual property of untraditional artistic creations, like magic and the growing difficulty of preventing artistic replication. This case includes many interesting facets such as Dogge's defamation countersuit in Belgium, issues related to moral and derivative rights, a failed negotiation, and a defendant who all but disappeared. The primary focus of this paper, however, is Teller's copyright infringement claim. Part I addresses the current law surrounding copyright protection of magic and the performance arts. Next, Part II lays out the facts of Teller's case. Finally, Part III discusses Teller's likelihood of success considering the case precedent he must overcome.
My friend Jay Dougherty, of Loyola (Los Angeles) Law School, published this post on the Teller copyright infringement decision at the Loyola, Los Angeles, Law School Faculty Law Blog, Summary Judgments. Here's the link.
The U. S. District Court in Nevada has spoken (not from behind the curtain, either). Judge James Mahan stated in a decision handed down March 21 that magician Gerard Dogge had infringed on magician Teller's copyright in the "Shadows" performance. Remember that case? Yes, the wheels of justice do grind exceedingly slowly (and expensively) but they get around to business eventually. Judge Mahan found that, contrary to the defendant's assertions, the Copyright Act protects dramatic performances as well as pantomines. What's going to the jury? The damages claim: a jury will decide whether Mr. Dogge's infringement was willful or not--willful infringement is incredibly more painful, in terms of dollars, to the defendant. Also going to the jury is Teller's unfair competition claim.
The Hollywood Reporter article mentions the Robert Rice copyright litigation against Fox; I discuss a little about magicians and IP law to protect against infringement in earlier posts here and here.
In early 2012, a Dutch magician did something unthinkable within the secretive and tight-knit magic community: he posted a YouTube video of himself performing a fellow magician’s illusion, and offered to reveal the secret to his viewers for a $3,050 fee. The illusion, however, was not just any old trick; it was the signature move of Raymond Teller, one half of the famous magic duo “Penn & Teller.” In April 2012, Teller took the unusual step of filing a lawsuit in federal court, alleging copyright infringement and unfair competition, to protect the secret behind his illusion. It is not clear, however, that magic is a copyright-protectable category of work. Neither the United States 1976 Copyright Act nor the United States’ Copyright Office’s working compendium addresses magic. No federal court has held magic protectable since the Copyright Act was amended in 1976. Still, magic meets the constitutional and statutory requirements for copyrightprotectable work. The Teller court should hold that magic illusions are eligible for copyright protection, regardless of whether it finds there was infringement in this particular case.
Ms. Brancolini wrote the piece under the supervision of F. Jay Dougherty, who contributed to Law and Magic (Carolina Academic Press, 2010).
Rick Lax, lawyer/magician, runs through the different kinds of possible IP protection for magic tricks (with a sidelong glance at illusions and performance) in a column published in Wired back in July of 2013. Yes, okay, I'm only just getting to it. Hey, it's been a busy semester of inflicting knowledge...
The Hollywood Reporter's Esq. Blog, written by Eriq Gardner, (excellent blog, BTW), comments on the progress of Teller's copyright infringement lawsuit against Gerard Dogge here. He notes that the suit has been frustrating for Teller because of the defendant's "vanishing" propensities. Says Mr. Gardner in part,
Earlier this month, U.S. District Judge James Mahan provided a status update and ruled on several motions. One had to do with whether the defendant was properly served papers in the case.
Soon after filing the lawsuit, Teller hired a private investigator and a law firm to locate Dogge. And how did that go?
"To date, defendant has evaded personal service and cannot be located in Belgium, Spain, or in any country in Europe," writes Mahan.
Teller might not have been able to find Dogge, but the famous magician managed to e-mail the court papers and prove that Dogge opened them. It's enough for the judge, who notes "the only reason defendant has not been personally served ... is because defendant surreptitiously evaded substantial attempts of service by plaintiff."
To make matters more interesting, although Dogge has artfully avoided the papers, he's not been silent. In fact, he's provided countless, colorful filings, including one where he taunts, "I will, after being served in the legal way, obey to the Court by taking responsibility, I will defend myself and prove that there was no copyright infringement."
Mr. Gardner points out that the defendant also requested a jury made up of magicians, a request that the judge rejected as "nonsensical." I get it. Mr. Dogge is suggesting that only other magicians, a jury of "peers," can judge the the case. Hmmm...maybe we can get some lawyer/magicians into that jury pool...
Remember the Teller v. Dogge lawsuit? Magician Teller filed a lawsuit against Gerard Dogge (real name Bakardy) for infringing the copyright of Teller's famous illusion, Shadows. A number of attorneys and magicians have commented on the suit on blogs. Last year, Chris Jones published an discussion of the lawsuit for Esquire.
Now Jennifer J. Hagan and William Samuels are publishing "Teller v. Dogge": When Two Magicians Duel Over the Secret to an Iconic Illusion, They Conjure a Copyright Infringement Lawsuit," in the Spring 2013 issue of "New Matter Magazine," the magazine of the IP Section of the California State Bar Association. It's an interesting piece. Stay tuned.