# Magic Tricks and Intellectual Property **URL:** \ **Category:** The BBQ Pit\ **Created:** [July 12, 2004, 9:07pm UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775 "2004-07-12T21:07:56Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Balthisar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/balthisar/32/2825_2.png) [@Balthisar](https://boards.straightdope.com/u/Balthisar)\ **Post date:** [July 14, 2004, 2:45pm UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/81 "2004-07-14T14:45:23Z")
> [@HeyHomie](#): > > There are lawyers on these boards. Presumably, there are some from the Chicago area. Are any of you willing to represent the Chicago Reader, _pro bono_, when **lanzin** or Abb Dickinson or whoever sues? Would this even be permissilbe (corporate charity and all that)? My offer of indemnification for one single link to a legal site still stands. Of course I’d have to approve to which site we link to describing the originally requested trick. ---
**Author:** ![Jayrot](https://avatars.discourse-cdn.com/v4/letter/j/3ec8ea/32.png) [@Jayrot](https://boards.straightdope.com/u/Jayrot)\ **Post date:** [July 14, 2004, 2:49pm UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/82 "2004-07-14T14:49:12Z")
There is a very real procedural issue here dealing with what threads can and can’t be started, which need to be made very clear. Please see my ATMB thread [here](http://boards.straightdope.com/sdmb/showthread.php?p=5065936#post5065936) ---
**Author:** ![yojimbo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/yojimbo/32/232_2.png) [@yojimbo](https://boards.straightdope.com/u/yojimbo)\ **Post date:** [July 14, 2004, 3:02pm UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/83 "2004-07-14T15:02:37Z")
> [@TubaDiva](#): > > So this is not a valid cite for your argument. With all due respect I’ve yet to read any cite from you backing up your argument other than the opinion of interested parties. ---
**Author:** ![Cubsfan](https://avatars.discourse-cdn.com/v4/letter/c/f4b2a3/32.png) [@Cubsfan](https://boards.straightdope.com/u/Cubsfan)\ **Post date:** [July 14, 2004, 3:10pm UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/84 "2004-07-14T15:10:25Z")
Since this is the Pit I’ll just say it. This is fucking dumb. Pretty soon we will have to run our GQ thru a mod just to get approval to post it in case it will step on someones toes. Fuckin dumb… ---
**Author:** ![Bruce\_Daddy](https://avatars.discourse-cdn.com/v4/letter/b/85f322/32.png) [@Bruce\_Daddy](https://boards.straightdope.com/u/Bruce_Daddy)\ **Post date:** [July 14, 2004, 3:24pm UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/85 "2004-07-14T15:24:28Z")
> [@TubaDiva](#): > > The case before the Ninth U.S. Circuit Court of Appeals was brought by Robert E. Rice, who sued the Fox Network and the masked magician involved in the series of Fox specials. > > Mr. Rice claimed that by virtue of the fact that he had made and sold a video tape in 1986 entitled “The Mystery Magician,” where a masked figure showed how famous magic tricks worked, that he had copyright and that copyright had been infringed upon. > > Whether the tricks could be revealed or not was NOT AN ISSUE IN THE CASE; Mr. Rice felt that he had exclusive right to the masked magician figure and thus he had been harmed for Fox and their masked magician. > > So this is not a valid cite for your argument. > > your humble TubaDiva From the Opinion: > [@](#): > > a result, while similarities in tangible expressive ele-ments fall within the realm of Rice’s copyright and are perti-nent to our analysis, the mere fact that both The Mystery Magician and the Specials reveal the secrets behind magictricks does not by itself constitute infringement. [Cite](http://www.ca9.uscourts.gov/ca9/newopinions.nsf/5482E2958BE178F688256D350051939F/%24file/0156582.pdf?openelement.) ---
**Author:** ![BMalion](https://avatars.discourse-cdn.com/v4/letter/b/e274bd/32.png) [@BMalion](https://boards.straightdope.com/u/BMalion)\ **Post date:** [July 14, 2004, 4:45pm UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/86 "2004-07-14T16:45:57Z")
Setting aside all the valid comments/complaints heretofore… I don’t care so much about the same old tricks that 99% of all magicians perform. But could all you magicians _please_ write some new jokes? I swear there is nothing more stale and tired than the patter of your average magician. That’s my rant, please continue. ---
**Author:** ![micco](https://avatars.discourse-cdn.com/v4/letter/m/5f8ce5/32.png) [@micco](https://boards.straightdope.com/u/micco)\ **Post date:** [July 14, 2004, 4:57pm UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/87 "2004-07-14T16:57:47Z")
I have nothing to add except that the “chilling effect” is now in place. There’s currently a GQ thread on edible bugs. I have a number of survival books that cover foraging for food and I have taken survival classes in different environments, but since everything I know about the subject was either read in a book I bought or taught to me by someone who derives income from his knowledge of the topic, I don’t think I can share that knowledge in the GQ thread. At least that’s my interpretation of the new rules since I don’t see much difference between someone discerning which bugs are good food and learning the trick behind a magic act that’s been around for years. I’m not trying to be sarcastic. I just think I’m going to have to revert to lurker status on the boards since everything I know about computers, aerodynamics, engineering and martial arts seems to fall into the same category as magic tricks under these new pseudo-intellectual-property restrictions. ---
**Author:** ![stuyguy](https://avatars.discourse-cdn.com/v4/letter/s/ec9cab/32.png) [@stuyguy](https://boards.straightdope.com/u/stuyguy)\ **Post date:** [July 14, 2004, 5:11pm UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/88 "2004-07-14T17:11:45Z")
> [@BMalion](#): > > Setting aside all the valid comments/complaints heretofore… > > I don’t care so much about the same old tricks that 99% of all magicians perform. > > But could all you magicians _please_ write some new jokes? I swear there is nothing more stale and tired than the patter of your average magician. > > That’s my rant, please continue. I just want to say that while I have found this thread fascinating and, in fact, have participated in the debate myself, it has begun to chase it’s tail, as it were. But **B,** you have provided a needed breath of fresh air to the mix. I could not agree more with your rant, and thank you! ---
**Author:** ![Epimetheus](https://avatars.discourse-cdn.com/v4/letter/e/c4cdca/32.png) [@Epimetheus](https://boards.straightdope.com/u/Epimetheus)\ **Post date:** [July 14, 2004, 6:49pm UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/89 "2004-07-14T18:49:59Z")
Wow, this is sad. Movies are copyrighted as well, does this mean somebody cannot give a review and state in their own words what the movie was about? Can parodies not be filmed making fun of other movies, because they violate the “idea” of the other movie? I can’t believe with all the cites and arguments presented- several of them by licsenced lawyers, that the Admin is still holding out. What does the precious ex-president of the magicians guild say about the arguments presented in this thread? I think there is something going on here that isn’t being said. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [July 14, 2004, 6:57pm UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/90 "2004-07-14T18:57:41Z")
Well, I think we need to give the administration a bit of time to decide a course of action. it’s one thing to quickly stop discussing an activity over the possibility of lawsuit, that is a safe, conservative move. It’s quite a different thing to become convinced that there is no real threat of lawsuit, and allow the discussion. There has been a lot of information in the last day poured into this thread, it takes time to digest. I trust that the Admins will reconsider their stance and allow this sort of discussion, and I’m willing to give them some time to make that change. ---
**Author:** ![commasense](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/commasense/32/3017_2.png) [@commasense](https://boards.straightdope.com/u/commasense)\ **Post date:** [July 14, 2004, 7:56pm UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/91 "2004-07-14T19:56:03Z")
On the off chance that we haven’t completely beaten this horse to death, I’ll mention that after **TubaDiva** pointed out my misunderstanding of the Rice case, I realized that there is a sense in which it actually _does_ support my argument. Namely, that after an hour or more of searching the Web (which I grant is not 100% authoritative), I was unable to find any substantial references to any _other_ lawsuits against Fox, whose pockets are far deeper than the _Chicago Reader_’s, or against the Masked Magician, who revealed more than a dozen expensive, popular, big stage illusions in two hour-long specials. If there really were a legal risk in revealing magic tricks, I think there would have been more signs of it on the Web in this and many other cases. ---
**Author:** ![Dan\_Norder](https://avatars.discourse-cdn.com/v4/letter/d/4af34b/32.png) [@Dan\_Norder](https://boards.straightdope.com/u/Dan_Norder)\ **Post date:** [July 14, 2004, 8:02pm UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/92 "2004-07-14T20:02:16Z")
> [@TubaDiva](#): > > In the rough concept, it would not be illegal for us to tell you how a trick is done. However, it would be unethical, especially when you consider that magic tricks and illusions are the product of someone’s work and often their livelihood. With all due respect to the administrator, this is abso-freaking-lutely ridiculous as a policy. A magician’s livelihood is in performing tricks, not in knowing tricks. The same flimsy argument about “ethics” could be used to delete any thread containing summaries of any movie or TV show. After all, their livelihoods are of getting people to come watch those performances too. People should cave in to claims of copyright infringement that are pure B.S. and they sure as hell shouldn’t cave in on such weak logic as this. Frankly, I am appalled and hope that the people running this bound quickly reconsider the implications of this wrong-headed policy decision. ---
**Author:** ![commasense](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/commasense/32/3017_2.png) [@commasense](https://boards.straightdope.com/u/commasense)\ **Post date:** [July 14, 2004, 8:31pm UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/93 "2004-07-14T20:31:51Z")
I forgot to mention: I did find a danger associated with revealing magic tricks: [David Copperfield’s rath](http://www.nola.com/weblogs/bourbon/index.ssf?/mtlogs/nola_bstdiaries/archives/2003_07.html): > [@](#): > > [A reporter] asked Copperfield for his opinion about the “Masked Magician” who ratted out fellow magicians’ trade secrets for a Fox TV expose’. > > “He has no penis,” Copperfield said, in that quiet, dangerous tone some guys get when they’re really angry. > > I had to ask. > > “Did you make it disappear?” > > Boy, those piercing dark eyes sure hurt when they slam you back into your chair and pin you like a butterfly. > > “No. He just has no penis.” Jeez, what a baby. Is it any wonder so many people hate this guy? ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [July 14, 2004, 9:04pm UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/94 "2004-07-14T21:04:58Z")
> [@](#): > > We made a decision that we believe was in the interest of the boards, and you are questioning it. This is your right. Your arguements shall be considered by the administration, and reversing our decision remains a possibility in light of new information. I would gladly invite facts that could help the administration make a more informed decision. > > Although this thread has been moved to the Pit, I would appreciate a civil discussion. OK keeping it civil, this is much bigger then the magic trick thread, it is the teaming millions saying that the message board mods have gone too far in their ‘so called’ protection of I.P. and it is in direct contradiction with Cecil’s mission. Cecil will turn over in his grave on this once he’s dead. ---
**Author:** ![x-ray\_vision](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/x-ray_vision/32/351_2.png) [@x-ray\_vision](https://boards.straightdope.com/u/x-ray_vision)\ **Post date:** [July 15, 2004, 1:24am UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/95 "2004-07-15T01:24:25Z")
One thing I forgot to mention in my earlier posts. Does anyone else find it odd that **TubaDiva** deleted the links in **commasense** ’s thread where magic secrets were given away free but left the ones where people wanted money for them? Is she so sure that the pay sites are giving royalties to the originators of these tricks (if that could even be known)? ---
**Author:** ![Fenris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fenris/32/498_2.png) [@Fenris](https://boards.straightdope.com/u/Fenris)\ **Post date:** [July 15, 2004, 2:11am UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/96 "2004-07-15T02:11:06Z")
Um…I understand forbidding the posting of schematics of how an illusion is accompished, but to ban a discussion (“To make an elephant vanish, the magician takes a small flesh-colored false thumb and…”)? That strikes me as silly. And the idea that because magicians make their living at it gives them special status? If that’s the case, better close _every_ recipe thread out there. I’d bet that at least half of the recipes posted were varients of recipes in cookbooks. Heck, to give a specific example, if I said “I heard Martha Stewart talking about a strawberry-lemon pie on her show and she said the recipe could be found in her cookbook, but I don’t want to buy a cookbook for one stinkin’ receipe. Anyone have a recipe they can share?” and a dozen posters chipped in with “copycat” recipes (that do NOT violate copyright or the law. Ingredient lists aren’t copyrightable…specific directions _are_), would that be closed too? Frankly, the “how it’s done” isn’t the key to a magician’s success anyway. The “how” part is nice and all, but it’s the patter that makes or breaks a magician. The flair. Best magician I ever saw was a streetcorner guy in Picadilly Circus. He did some slight of hand stuff and while I knew _exactly_ how he did it, his patter, flair and style was what made him so damned good. And I’ll echo what someone else said in the other thread: what about threads that expose $cientology? We’re _certainly_ violating the law when we talk about Xenu, but it’s always been permitted and, hell…encouraged at least tacitly. Will that change as well? Fenris ---
**Author:** ![cj\_finn](https://avatars.discourse-cdn.com/v4/letter/c/4bbf92/32.png) [@cj\_finn](https://boards.straightdope.com/u/cj_finn)\ **Post date:** [July 15, 2004, 3:36am UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/97 "2004-07-15T03:36:02Z")
Summation of IP points: 1. Magic tricks themselves are not copyrightable. 2. Copyrights apply to instructions on how to accomplish a magic trick that have been recorded in a tangible format, i.e. written down. Therefore, copies of the instructions taken from such records are forbidden under the copyright laws. 3. Copyright infringement will be found where the copyrighted text and the accused text are substantially the same (paraphrase here as I don’t have the statute before me) and access to the copyrighted work is shown. At times, access will be inferred if the similarity between the accused and copyrighted works is strikingly similar (again a paraphrase). 4. Generally speaking, only those who publish copyrighted works will be liable for infringement. If I recall correctly, linking to a website does not constitute copyright infringement. 5. If a magic trick is patented, there is no stricture on describing the magic trick in its every detail; full disclosure of a patented method is required as the quid pro quo for the monopoly granted to the patentee. 6. Patents grant a monopoly to the patentee on making, using, or selling the patented item, in this case a method (magic trick). 7. Trade Secrets are a contractual creation in which parties agree to maintain the confidentiality of a piece of information. 8. Trade Secrets may last indefinitely. 9. Trade secrects may be legally reverse-engineered. 10. Where the information that is the subject of a trade secret is available from a third party that is not under any contractual duty to keep the information secret, then the trade secret is not a secret and the contract that created the trade secret will not be enforceable against those who learn the protected information from the non-restricted third party. Some of these things have been asserted already. The others are things that I know from my work as an intellectual property attorney. They are my own words but will be born out by citations if so desired. (I’m not actually looking forward to finding the cites but I could). Based solely on what I’ve read in this thread, there are no concerns regarding direct patent infringement unless someone figures out how to actually perform the trick on the website, i.e. is able to practice the trick. Note that I’m assuming that there is a valid patent on the magic trick, a fact that I highly doubt. If there is a patent, and instructions on how to practice the invention are listed here, a crafty attorney may be able to argue that the board is liable for contributory infringement. But, since the information in a patent is already mandatorily in the public domain, this argument would not hold water. Also based solely on what I’ve read in this thread, there are no concerns regarding trade secrets. This board is not under any contractual duty that I know of to keep all magic tricks secret. Therefore, receiving information from a poster on how to perform a magic trick should not give rise to any problems. I use the word “should” instead of “will” because I suppose that a poster could somehow let the mods know that their posts are full of trade secrets that are being illegally disclosed. In that case, the mods should delete posts to avoid problems. Liability will likely not accrue even where the illegal posts are not deleted, though arguing about whether liability will accrue can be expensive, even if you win. Finally, based solely on what I’ve read here, there should not be any concerns about copyrights. As has already been said, copyrights don’t apply to magic tricks. Copyrights do apply to written instructions. Dropping copied text from a copyrighted set of instructions into a post is a copyright infringement. Nothing I have seen leads me to believe that the deleted instructions or links constituted copyright infringement. We should confirm, of course, that the written instructions that were deleted were in fact written by the poster in question and are not simply a cut and paste job. Linking to another website that has written instructions is not by itself a copyring infringement. The mere presence of the linked to instructions on the web might be an act of infringement, but the link to them is not, unless the SDMB runs the linked to site as well. The bottom line is that in this case there does not appear to be any real issue of intellectual property infringement. I have in the past been frustrated by the conservatism of the mods on the board with respect to intellectual property rights, but in general really have no problem with their actions in this regard. Tuba’s actions in this case are inconsistent with past practice. The ethics issue is debatable on its own merits, but I did not realize that posts were policed for ethical orthodoxy. My own opinion is that there is nothing unethical about outing a magic trick. Letting the cat out of the bag is the magician’s problem. Which leads me to the issue of the high grand pooba of the magician’s union. Taken at face value, his assertion that people have been successfully sued for disclosing magic tricks is true. But it is an exceptionally biased and misleading statement because it does not address the specific issues of the set of circumstances before us. That statement is intended to mislead by inferring that this is one of those times that the parties involved will be sued and sued successfully. I admit that there are a few facts that we haven’t nailed down rolling around out there. But Mr. Magicians statement and Tuba’s reliance on it are getting darn near tin foil land. This board will never obtain a guarantee from anyone that there will never be a copyright problem arising from a user’s post. Therefore they must be careful. They just need a bit of recalibration over this issue. cj (just be glad I deleted the appendix) ---
**Author:** ![cmason32](https://avatars.discourse-cdn.com/v4/letter/c/51bf81/32.png) [@cmason32](https://boards.straightdope.com/u/cmason32)\ **Post date:** [July 15, 2004, 4:34am UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/98 "2004-07-15T04:34:53Z")
> [@cj finn](#): > > Summation of IP points: > > 1. Copyright infringement will be found where the copyrighted text and the accused text are substantially the same (paraphrase here as I don’t have the statute before me) and access to the copyrighted work is shown. At times, access will be inferred if the similarity between the accused and copyrighted works is strikingly similar (again a paraphrase). Access isn’t always inferred. Moreover, independent creation of similar text is not a copyright violation. (Copyright infringement is not a strict liability offense, unlike patent infringement.) However, Courts have also ruled that in the case of rules or instructions, as in the instant situation, similar text, even if copied, does not necessarily give rise to a copyright infringement action. From _Continental Casualty Co. v. Beardsley_, 253 F.2d 702 (2d Cir.) _cert. denied_, 358 U.S. 816. > [@](#): > > In the instant situation there is no room for the skill of the mechanic or artisan in utilizing the plan or the method disclosed. Its use, to which the public is entitled, can be effected solely by the employment of words descriptive thereof. In our view, where the use can be effected only in such manner, there can be no infringement even though the plan or method be copied. We realize that such a view leaves little, if any, protection to the copyright owners; in fact, it comes near to invalidating the copyright. This situation, however, results from the fact that the practical use of the art explained by the copyright and lodged in the public domain can be attained solely by the employment of language which gives expression to that which is disclosed.’ > > … > > To hold that an idea, plan, method or art described in a copyright is open to the public but that it can be used only by the employment of different words and phrases which mean the same thing, borders on the preposterous. ---
**Author:** ![Klaatu](https://avatars.discourse-cdn.com/v4/letter/k/e0b2c6/32.png) [@Klaatu](https://boards.straightdope.com/u/Klaatu)\ **Post date:** [July 15, 2004, 5:00am UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/99 "2004-07-15T05:00:33Z")
I have been on this board almost five years, and all I can tell you is the Reader must have some “Big Dog Management Type Of Person” who is VERY paranoid about lawsuits. Why this is I have no idea. In my years here I have seen literally dozens of threads closed because of “copyright” issues, while the same subjects flourish on countless other boards, which are never sued. One must remember that most, if not all of the mods/admins are unpaid hard working people who do this because they like it. The vast majority of these folks have probably never even met or talked to the “Big Dog Management Types”. I guarantee that at least somebody in Reader upper management reads this board every day, as we are thousands of people that they want to be possible sources of revenue. (Not just the subscription thing) While I disagree with probably 80% of these copyright issue thread closings, I truly think the mods/admins are hamstrung by the “Big Dog Management Types”. But it’s good that we can still bitch about it… ---
**Author:** ![Ms2001](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ms2001/32/18463_2.png) [@Ms2001](https://boards.straightdope.com/u/Ms2001)\ **Post date:** [July 15, 2004, 5:44am UTC](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775/100 "2004-07-15T05:44:13Z")
> [@kanicbird](#): > > OK keeping it civil, this is much bigger then the magic trick thread, it is the teaming millions saying that the message board mods have gone too far in their ‘so called’ protection of I.P. and it is in direct contradiction with Cecil’s mission. > > Cecil will turn over in his grave on this once he’s dead. Hear, hear. Someone sees a magic trick and wants to know how it works. They post on the SDMB to receive information - to stamp out their own ignorance. _That’s what I thought the Straight Dope was all about._ If we can’t answer questions like this just because someone else wants to sell the answers, then what on earth _can_ we answer? Think of any subject, and you’ll be able to find someone selling a book about it! The most charitable thing I can say about this policy is that it reflects a gross misunderstanding of copyright law. I hope the policy is revised before my subscription is due for renewal. [Previous page](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775.md?page=4) [Next page](https://boards.straightdope.com/t/magic-tricks-and-intellectual-property/254775.md?page=6)