agic is an art through which magicians manipulate people through their magic tricks. These tricks have undergone transformations in respect of technology and creation since its being. The art of magic is protected under intellectual property by patents, trade secrets and copyright. For instance, in the trick of ‘saw a person in half’ H. GOLDIN on June 12 1923 was granted the patent.
After showcasing the tricks the magicians share those tricks within their community and start searching for new innovations and ideas for different trick. One of the great magicians of the 19th century Navel Maskelyne said “the difficulty of producing a new magical effect is about equivalent to that of inventing a new proposition in Euclid.”
The rights of the magicians are exposed in three ways:
· Creating and sharing
· Stealing
· Public Domain
Creating and Sharing: Creating and sharing of the magic art is done between the magicians with the consent of the magicians. A magician coming with a new trick exploits it thoroughly and after exposing it he transfer the secrets of the trick to other magicians. It is very obvious that magicians do not want to put their tricks to public domain as by doing so their magic would no more be a magic. Many seasoned magicians take pride in sharing their modus operandi with the next generation of magicians. This sharing of knowledge between the community helps in bringing new innovations and refinement of magic.
Stealing: In the late 1870s, magician Buatier deKolta performed a memorable trick on the stages of Paris whereby he produced a copious number of paper flowers from inside a previously empty piece of rolled up paper. One night at the Eden Theatre, a draft of wind carried some of the paper flowers onto the floor in front of the stage. Seizing the opportunity, a magician in the audience picked up a flower and rushed out of the theatre. The flower’s ingenious design circulated among magicians, and many others were soon performing deKolta’s signature trick. Today, any magician can purchase “deKolta flowers” for a few bucks. These types of circumstances are referred to as stealing with magicians. It could be referred to as exposure of others magic without the consent or knowledge or permission.
Public Domain: The biggest threat to the magicians is when their tricks are exposed to public as public exposure discloses their knowhow of the trick and it no more remain a magic or interesting or entertaining to the people.
According to magician Jon A. Hand ‘real damage is that exposure teaches people not to respect magic as an entertainment anymore ’ If a magic is exposed to the general public it is true that it will kill the curiosity behind it for the public, and directly it effect the creativity of the magicians.
Legal Rules Protecting the Rights of the Magicians
Copyright: In U.S. the Federal Copyright Act of 1976 provide the copyright protection for dramatic and choreographic works. This means that a script can be copyrighted, stage directions, and video recordings of the performance of the performance can also be copyrighted (magicians). It also says u/s 102 (a) that copyrights subsists in tangible medium from which they can be perceived, reproduced or otherwise communicated either directly or indirectly with the aid of machine.
Patent: While granting of patent to the magicians they need to reveal their secret of the trick through specification to the public which most of the magicians not willing to do so hence few magicians patent their innovations. One of the patented tricks has been mentioned on the first page of the writing. Another trick which was patented was ‘Cigarette up the nose’ granted on July 12, 2004.
The method is a magic trick device which provides an illusion of a performer inserting a cigarette into his nostril.
Another Magic trick by Taisheng (Andrew) Han Jung-Fa Hsia for unwrapping a solid ring in a solid chain was granted patent having USPC class 472 69. USPTO even has a class dedicated to Amusement Device (472) and various subclasses such as illusion or stage device (472/57).
Yigal Mesika v. Sean Boguniaet al is
the first case to ever prevent imitation of a magician’s device of performing tricks. In the case the patented device was ‘significant improvement of similar designs used by magicians in the past for creating the illusion of levitating objects.’ Mesika claimed that Sean (defendant) has incorporated his device to new iThread, Deck TR, and iThread X products without Mesika’s knowledge or consent. Under the terms of the settlement agreement, Sean Bogunia now will no longer create his iThread, Deck TR, and iThreadX products in their current configuration. Bogunia also agreed that for future sales of products that use Mesika’s design, if any, he will pay Yigal Mesika an agreed upon royalty payment for each such use and acknowledge on the packaging for any such product that it incorporates Mesika’s patent design.
Trade secret: Without any doubt magic methods are the forms of trade secrets and the best way to protect the magic secrets as it does not expire and grant confidentiality. A magician before sharing his trick with anyone can come to an agreement of confidentiality with that person to not to disclose his tricks to any third person.
"Trade secret" means information, including a formula, pattern, compilation, program device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
(ii) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Trade secret law holds that (1) Liability for violating a trade secret only attaches to those violators who obtain the secret through “improper means.”
(2) This requires outright theft or the breach of a “duty to maintain secrecy”
Trade secret in magic industry is mainly in between magicians to not to disclose the secret to the public. In the case of Andre Kole v. Nash Entertainment, the magic community tried to sue the Fox Network for displaying magic tricks in “Masked Magician” for the violation of Trade Secret. It was alleged by the magician Andre Kole that Fox was exposing an illusion of his called the “Table of Death.” The suit failed. In another case of Harrison v. SF Broasdcasting similar action was passed by group of magicians seeking to vindicate their “collective” right to magicians’ trade secrets was also failed.
Need of IP in Magic
Mostly magicians avoid using IP rights for the protection of their work because of the following reasons:
· Copyright does not protect as per the trick but merely its presentation
· Patents protect their innovations of the trick but it also displays or exposes the trick through specifications which magicians doesn’t want to reveal
· Trade secret being not a very good defence as it is difficult to show the infringement of the trade secret
Therefore magicians prefer to make their own norms and behold with them. The largest organization of such norms is the International Brotherhood of Magicians (IBM) which has its own ethical codes.
The first category of norms deals with attributing credit to innovators and inventors:
(1) The first person to publish or prominently perform a trick gets credit for inventing it.
(2) People are encouraged to publish improvements and new versions of previously shared work, but derivative works should acknowledge and credit the original.
The second set of norms governs the use of a new idea once it has been created. Here, there are at least four major use norms:
(1) If a secret method or dramatic presentation has not been widely shared, published, or sold, nobody else can use it.
(2) If a secret method has been widely shared, published, or sold, it may be used freely. Although many of these rules are codified in various codes of ethics, this section draws heavily on my own experience and observations as a member of the magic community.
(3) If a dramatic presentation has been widely shared, published, or sold, it may be used, but using it will be considered bad form.
(4) If a trick was originally published or shared but has not been used for a long time the person who re discovers it should be treated as she invented it.
The third and final category of norms governs the exposure of the magic community’s secrets to the lay public:
(1) Never expose a secret to a non-magician.
In the same way society of America magicians codes of ethics have been built as follows: All members of the Society of American Magicians agree to:
1) Oppose the willful exposure to the public of any principles of the Art of Magic, or the methods employed in any magic effect or illusion.
2) Display ethical behavior in the presentation of magic to the public and in our conduct as magicians, including not interfering with or jeopardizing the performance of another magician either through personal intervention or the unauthorized use of another's creation.
3) Recognize and respect for rights of the creators, inventors, authors, and owners of magic concepts, presentations, effects and literature, and their rights to have exclusive use of, or to grant permission for the use by others of such creations.
4) Discourage false or misleading statements in the advertising of effects, and literature, merchandise or actions pertaining to the magical arts.
5) Discourage advertisement in magic publications for any magical apparatus, effect, literature or other materials for which the advertiser does not have commercial rights.
6) Promote the humane treatment and care of livestock used in magical performances.
Conclusion
Magician can protect their tricks through patents, copyright and trade secret, but these rights do not seem to be sufficient in protecting the rights of the magicians which they do not want to exposé to the world. If we think from a magicians point of view than certain loopholes can be found in the existing protection regime like revealing of the secret through specification, or only protection of right in way of artistic work. Therefore to overcome these loopholes magicians have made certain norms or code of conduct for themselves according to which they protect their rights. Due to lack of protection by legal remedy and also due to stealing of their tricks as mentioned above magicians had to come up with professional code of conduct to defend their ideas.
These norms are an approach towards their legal rights if they are enforced properly. Neither the norms of the magicians nor the IP is able to protect fully the secrets of magicians, hence a mechanism is needed to protect them fully by implementing the law for magicians so that their secrets could be protect completely.
BY: Varnika Singh
Uniform Trade Secrets Act sec 1(1) (1985). BC190153 (Cal. Sup. Ct. 1998). 1998 WL 355462 (E.D. La.). Jacob Loshin, J.D., 2007, Yale Law School, Available at papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1005564_code627178.pdf? http://www.magicsam.com/ethics.asp
