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.
Many scholars write that communities of IP creators whose work may not be sufficiently protected by the formal law is nevertheless okay because internal norms of the IP communities work to provide protection. While this is true to a point, it overlooks the fact that these same creators are afforded no protection where the misappropriation is committed by an entity outside of the community. This paper discusses the ramifications of such a misappropriation and suggests that it causes the greatest type of harm.
Here from the Hollywood Reporter, here from Ars Technica, here from MSNBC.com, here from Reuters, here from Wired.com, here from Today.
Comments from a post at Techdirt here raise an issue that I think is on the minds of some. Since P&T are famous for exposure (revealing the secrets of a number of illusions), why is Teller suing? Isn't he being a little, ahem, hypocritical? One could take that position, I suppose, and one could argue (as I have in the past) that knowing how a trick or illusion is done doesn't diminish the entertainment value in watching the magician perform the trick. If I know how the "sawing a woman in half" illusion can be done, the way Criss Angel performs his version is still mystifying. I'm not sure how he does his version. Teller is, after all, a wonderful artist, and arguably he performs his illusion better than anyone else. One goes to a P&T show to see P&T's artistry. Does it matter if Mr. Dogge reveals how Teller's illusion might be done by creating a version of the "Shadows" illusion that seems very similar and tells me (for $3000) how to do it? Would I enjoy Teller's version less?
Probably not, but I would raise two points. First, I don't think P&T have ever exposed the secret to a trick that wasn't already generally available to the profession and the public. P&T also (I think) make clear that the explanation to the trick is one explanation of the trick. Nor, as far as I know, have they exposed a trick owned by someone else. I could be wrong, and if so, I would appreciate someone giving me evidence (not just assertions) to the contrary. Second, and this point is related to the first point, Teller took pains to try to protect his illusion. He created it, he hasn't shared it with the rest of the profession, or even with a select few (except perhaps his partner and his crew). He has the right to monetize, perform it, or bury it in a box, and refuse to perform it.
Says the Techdirt poster:
This is disappointing in a number of different ways. Years ago, we wrote about an academic paper that looked at how the magic community policed itself without having to resort to the blunt instrument of intellectual property lawsuits. As Tim Lee noted at the time:
Instead, the magic community uses social norms to reward those who discover new magictricks and punishes those who disclose them to non-magicians. Because magicians rely so much on their professional network of other magicians to learn about new tricks, new equipment, and new performance opportunities, maintaining a good reputation within the magic community is essential to the career of a successful magician. A magician who uses another magician's trick without giving the originator proper credit, or who reveals secrets to non-magicians, is shunned by other magicians. That kind of ostracism can be a much better (not to mention cheaper) way of disciplining wayward members than getting the lawyers involved.
Unfortunately, it looks like Teller has decided to go much further than that. While it is true that he registered a copyright on the trick, illustrated with the following amusing illustration, it's pretty ridiculous for a magician to claim "ownership" of a trick...
The paper the poster is referring to is one by Jacob Loshin, and what Loshin is suggesting is that magicians can, should, and do police themselves. It's a good paper and an interesting idea, and it's reprinted in the Law and Magic collection I mention in a previous post. I don't think Loshin would suggest, however, that magicians should never go to the law to protect their rights if the law works more effectively to protect them than social norms. Teller is claiming copyright in the choreography of the performance. I don't understand why it's "pretty ridiculous," any more than it would be "pretty ridiculous" to claim copyright in choreography of a ballet or other routine. Congress has recognized this claim may be asserted under the Act; why should artists not take advantage of it?
I understand the Techdirt poster's points; I think they derive from a different conception of what "ownership" means in terms of intellectual property, whether it is possible or desireable, and what the limits on individual rights in IP ought to be. It's a debate that is ongoing in IP law, and has been heating up over the past few years. The debate will continue because it goes to the heart of the dispute not just over ownership of intellectual property but of information. In our technology-dominated age, that's a Big Deal.