As disciplines, magic and the law are usually considered to have little in common. One is mystical, otherworldly, associated with phenomena that reason can’t comprehend; the other is anchored in the affairs of this world and at least aspires to be governed by logic and principle. And yet, as literature shows us, if you want to dabble in magic safely and successfully, it helps to have the advice of a good attorney.
Hmmm. When I read passages like this one, they remind me that there are lots of people out there who still aren't convinced that law and magic are disciplines one can fruitfully compare. Maybe I should send Ms. Barker a copy of the law and magic book. Or at least a citation.
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.
Of interest: a series of articles on war magic and warrior religion in the journal Social Analysis (vol. 58, Spring 2014), in an issue called War Magic and Warrior Religion: Sorcery, Cognition, and Embodiment. Here's the list.
Farrer, D. S., Cross-Cultural Articulations of War Magic and Warrior Religion, 58 Social Analysis 1 (Spring 2014).
Chan, Margaret, Tangki War Magic: The Virtuality of Spirit Warfare and the Actuality of Peace, at p. 25.
de Grace, Jean-Marc, Javanese Kanuragan Ritual Initiation: A Means to Socialize by Acquiring Invulnerability, Authority, and Spiritual Improvement, at p. 47.
Neidel, J. David, Discourse of Decline: Local Perspectives on Magic in Highland Jambi, Indonesia, at p. 67.
Roberts, Michael, Encompassing Empowerment in Ritual, War, and Assassination: Tantric Principles in Tamil Tiger Instrumentalities, at p. 88.
Jokić, Željko, Shamanic Battleground: Magic, Sorcery, and Warrior Shamanism in Venezuela, at 107.
Farrar, D. S. and James D. Sellmann, Chanta of Re-enchantment: Chamorro Spiritual Resistance to Colonial Domination, at p. 127.
Sinclair, Iain, War Magic and Just WAr in Indian Tantric Buddhism, at p. 149.
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).
Over at FindLaw, Brett Snider points out that Ariel the Little Mermaid really should have hired an attorney to look over that contract Ursula wanted her to sign--you know, the one that enables Ariel to be with her true love, but for a very high price. Talk about terrible terms! Just goes to show you that there aren't nearly enough lawyers practicing in Animation-Land or ComicVille. The only ones I can think of, offhand, are Harvey Birdman (Attorney at Law), and the ones the ABA lists here. (Although the Topless Robot Blog lists thirteen more comic book lawyers of varying capabilities and moral persuasions here).
For more fictional fun, check out Deanne Katz's analysis of Bilbo's Hobbit contract here and Tanya Roth's deconstration of the Grinch's holiday legal entanglements here.
Admittedly, this post is late (or early)...The wonderful blog Jack of Kent has these thoughts from last Hallowe'en (Oct. 31, 2012) on the links between law and magic:
In fact, magic and the law do have something in common – at least that part of magic which is concerned with spells and sorcery.
Other than in extreme situations, the stuff of law consists of words: words in statutes or in contracts, words said in court or in witness statements, and words in judgments and court orders.
Ultimately these words have the “real world” effect of being a prelude to, and justification for, the use of coercive power by one person on another. This can include the court attendant “taking you down” to the cells or the bailiff enforcing a court order at your door.
But such resorts to coercion happen at the margins: most people conduct their daily business on what they believe the law to say: “you can’t do that, there is a law against it” or “it is perfectly ok for me to do this, there’s no law against it”.
Generally, most people are reasonable, and they think the law is reasonable, too. In the words made famous during WWII, they keep calm and carry on. More here. Great comments on the post from readers, too.
It's a thoughtful explanation of how law and magic, seemingly disconnected are related through the lens of anthropology;,it includes a review of various legal approaches to the treatment of magic and a definition of "magic," (in order to get the discussion moving). The authors also present a straightforward review of the problem facing legislators and judges: how do societies, and their legal regimes, differentiate between genuine belief, which might include practices that look magical, and therefore objectionable, but need protection, and fraudulent behavior and practices, which look awfully similar and also objectionable, and don't need protection?