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).
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.
On the Franklin & Bash episode aired June 23 ("Bro-Bono"), the prosecutor makes a Penn & Teller reference, and in my opinion, not an apt one. ADA Janie Ross, Peter Bash's former girlfriend, who is often assigned to prosecute his cases (are there no other ADAs in that office? how odd) objects to one of the pair's shenanigans in court. As Mr. Franklin flips opens a beer and proceeds to imbibe (in open court), working on a theory of their case in order to try to acquit their client, the judge senses that his courtroom is rapidly becoming a circus.
Mr. Bash: "We're arguing that it takes time for alcohol to be absorbed into the body. Mr. Franklin is demonstrating that to the jury." The judge: What's going on here? Ms. Ross: "Your Honor, may we approach the bench with Penn and Teller?"
First, nothing about Franklin & Bash's inappropriate demonstration is remotely magical. Why Janie Ross uses any magician's name in referring to them is beyond me. They aren't using any sort of misdirection, for example. Everyone can see Franklin opening the beer and drinking it; the question is why? Even after his partner explains the reason, the question is still why? If you want to explain to the jury that alcohol takes time to be absorbed into the bloodstream, call an expert witness. Don't drink the alcohol and then ask the police officer to test your partner's responses with a breathalyzer, which is what these two clowns do. (I said they turned the courtroom into a circus).
Second, judges frown on lawyers (particularly prosecutors) who make the "magician" argument. Comparing opposing counsel to a magician is bad form. In extreme cases, it might be grounds for reversal. As I discuss in a recent article, U.S. appellate courts in general disapprove of lawyers who use magical terms or refer to opposing counsel as magicians. For one example of how appellate courts treat the magician argument, see State v. Nasi, 2005 Wash. App. LEXIS 831 (excerpt below).
Because calling counsel a magician has negative connotations, we do not encourage the use of this metaphor. To protect the integrity of the adversarial system, prosecutors should be exceedingly careful, when commenting on defense counsel's strategy, not to improperly disparage defense counsel or defense counsel's role.
Third, Penn & Teller have said and written repeatedly that they don't drink alcohol. See Penn & Teller, How To Play In Traffic (1997), and numerous interviews, and I would think that most people who have heard of the pair know that. So, I wouldn't compare a beer-drinking lawyer in a courtroom (even one doing so to make a point for his client) to P&T. Even a fictional one. Even on TV. It just doesn't make sense.
Finally, the only reason that I can think of for using a magical analogy is to sway the jury. If a lawyer is going to use a magical analogy, she had better be sure it's a good one. Janie Ross's P&T analogy isn't a good one. As I noted before, Franklin & Bash aren't performing any kind of magic here. Franklin is drinking beer and then plans on a breathlyzer test. Neither Franklin nor Bash leads up to nor continues with any kind of "magical" reference. I think Ms. Ross is just trying to use the P&T name for reasons of her own, reasons which I, at least, don't understand. The reference may in fact, help her opponents, since the jury may identify them with the popular magicians. So, what exactly did the writers have in mind?