Magic Tricks and Intellectual Property

[Guinastasia]

In the ATMB thread:

I did NOT say magic tricks are copyrightable. Just the opposite.

Bottom line: DON’T REPUBLISH MATERIAL ON THIS WEBSITE THAT IS THE PROPERTY OF SOMEONE ELSE.

Sheesh, how many times do I have to say that?

your humble TubaDiva
Administrator

But, if they’re not copyrightable, then HOW is revealing how a trick is done, “republishing material that is the property of someone else?”

Her statements seem oddly contradicting, to say the least.

Sorry, Tuba, but I’m finding this a very disappointing decision, for the SDMB. You’re more likely to get sued for the threads bashing Scientology, than for talking about magic tricks.

[cj_finn]

@cmason32

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.

cmason:

You are correct. But where there is a striking similarity between the copyrighted article and the accused article, access MAY be inferred. See the bit of text below for support. Its from a 3rd Circuit unreported case, but the principle still stands.

I love the case that this one cites from. Dam things . . .

cj
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2717

Page 6

Copying under Feist may be proven circumstantially by demonstrating (1) that the
defendant had access to the allegedly infringed copyrighted work, and (2) that the allegedly infringing work is substantially similar to the copyrighted work. Dam Things From Denmark v. Russ Berrie and Co., Inc., 290 F.3d 548, 561 (3d Cir. 2002).

To meet the first prong of Dam Things, plaintiffs are not required to prove by direct evidence that defendants gained access to plaintiffs’ work. Instead, access can be inferred by indirect evidence. Boisson v. Banian, Ltd., 273 F.3d 262, 269 (2d Cir. 2001). The indirect evidence must simply show that there is a “reasonable possibility of access.” Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir. 1988) (citing Ferguson v. National Broadcasting Co., 584 F.2d 111, 113 (5th Cir. 1978), and 3 M. & D. Nimmer, NIMMER ON COPYRIGHT § 13.02[A] (1988)). Thus, where there is a “relationship linking the intermediary and the alleged copier,” access may be inferred. Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 942 (8th Cir. 1992) (internal quotations omitted); Towler v.
Sayles, 76 F.3d 579, 582 (4th Cir. 1996).

[Jayrot]

Based on the ATMB thread, I think this issue has been resolved. Although it’s not much of a retraction or “change in policy”. Basically, we’re back to where we started from:

1)Talking about things in your own words is OK.

2)Do not reprint copywrited material verbatim.

There is some ambiguity about the notion of “not wanting to pay” for something and asking for it for free. In my mind, and apparantly that of the Mods/Admins, it’s completely irrelevant as long as you abide by rules 1) & 2).

I subsequently opened another thread in GQ on the same topic (rubber band magic tricks), and it has (so far) stayed open.

[tremorviolet]

@Jayrot

There is some ambiguity about the notion of “not wanting to pay” for something and asking for it for free. In my mind, and apparantly that of the Mods/Admins, it’s completely irrelevant as long as you abide by rules 1) & 2).

I think the “not wanting to pay” is the crux of the problem. It’s inclusion in the original post inspired a knee jerk reaction on the parts of the admins who are really worried about stealing. I’d bet my cat that if the OP hadn’t used that phrase, no one woudl have even noticed that thread.

[Johnny_Bravo]

@tremorviolet

I’d bet my cat that if the OP hadn’t used that phrase, no one woudl have even noticed that thread.

Unlikely, since the mess was started by ianzin informing the mods that all magic tricks are intellectual property and giving out instructions to any magic trick is a violation of copyright law.

I hope that by this point all you intelligent Dopers have provided enough evidence to the contrary to debunk these silly ideas.

[Gadarene]

I hope that by this point all you intelligent Dopers have provided enough evidence to the contrary to debunk these silly ideas.

Judging by the administraton’s steadfastness, it certainly doesn’t look like it so far.

I stand by my assertion that revealing how a magic trick is done to someone who doesn’t want to buy a book to read about it is, if anything, more innocuous than providing spoilers for a movie that someone doesn’t want to pay to see. I’d be interested in hearing how the two are materially different such that the former is improper while the latter is not.

[asterion]

I am honestly trying to give both Ianzin and TubaDiva what is to me the benefit of the doubt, both from the mutual respect due to another member and an admin, as well as the fact that Ianzin is in London, where there may be enough of a difference in IP laws for both groups to be right, but they are making it somewhat difficult. Leaving aside the debate that always seems to surface about under which laws a multi-national board hosted in one specific country must follow, Ianzin has yet to show any specific law, or even better, court case, as a backing for his inital assertion. TubaDiva brings up one Abb Dickenson, who would be an interested party. Seeing as how there have been both opinions from lawyers and law students (not that great by themselves, I know) as well as legal opinions provided that appear to support our side, I think that it is imperative for both Ianzin and TubaDiva to provide any legal opinions or laws that they know of or have been told about so that it stops looking like, quite frankly, that the admin has been unduly influenced by one member and someone else otherwise unconnected with the SDMB, both of whom appear to be interested parties.

I’m going to repost part of what I said in ATMB, since Gaudere thought it a good analogy (as do I.)

@asterion

This example came to me in the shower today. IMHO, it’s a much better analogy than song lyrics-book plots-movie twist endings or what have you.

Pong. That’s right, Pong. The most simple video game in existence, probably programmed millions of times by beginning programmers. Let’s say I want to see how complex the source code is for that simple a game. So I come to GQ and ask, “Hey, how complex is the coding of a simple video game like Pong?” One poster posts the code of a version he wrote in a programming class, another poster gives a link to someone’s website where they make their version of the game available for free along with the soure code under the GPL or something similar, and a third poster gives links to an eBay auction to buy a Pong arcade machine and to Amazon to buy Pong in a “best-of the 70s and 80s” arcade game ported to PC released by Atari or the like.

As I understand it, TubaDiva will now delete the post that gives someone’s original source code for the Pong clone, the link to the downloadable free clone and source code, but will leave the links to eBay and Amazon with a warning to me and the other posters “not to post material that is the property of someone else; remember what I said in that magician thread” despite the fact that you cannot copyright an idea (in this case a simple computerized table-tennis game) only a specific use of that idea (like the offical Pong game.)

This, I think is the crux of the matter and where we appear to be at loggerheads. It does not help that TubaDiva has appeared to be inconsistent, at least to me and possibly x-ray vision.

@x-ray vision

@TubaDiva

I did NOT say magic tricks are copyrightable. Just the opposite.

@TubaDiva

Apparently in work that is truly original, the descriptions/plans/methods outlined are depicted in such a way that to discuss it publicly in any form is to violate copyright.

You pretty much did say it, no? I suppose I better not stand around the water cooler and tell anyone how truly original magic tricks are done? Are you kidding me?

Now, in TubaDiva’s defense, she does say that

@TubaDiva

(I do have some reference material coming to me on this subject, but I do not yet have it in hand.)

I, for one, hope that this legal material arrives quickly and that, when it does, it is posted or linked to so that we may all see what TubaDiva is using. However, I still think that in cases of where something is ambigously in or not in the public domain or whether or not it is or can be covered by a copyright or patent, it is incumbent on the person or persons making the claim that something is not in the public domain to prove their case first.

[asterion]

I’m sorry, I meant Gadarene, not Gaudere.

[Gadarene]

I’m sorry, I meant Gadarene, not Gaudere.

As always, I’m flattered by the comparison, even if it was made in error.

[Khadaji]

In the latest thread in GQ on the magic trick in question, Tubadiva has posted to let us know that she has reviewed the evidence provided and seems to agree that as long as copyrighted material is not directly quoted, describing a magic trick is legal. I think it is cool that the mods review all situations and input and make informed choices.

link

Perhaps now this thread can rest.

[Gaudere]

As always, I’m flattered by the comparison, even if it was made in error.

As am I.
Tuba reopened the thread. I appreciate the input from the dopers, particuarly the lawyer dopers; it played a large part in helping us decide to reopen the thread. OK, lawyer dopers–there are no circumstances in which you cannot discuss in your own words the secret to any trick, right? Just to make sure I’m clear on this.

[Random]

Gaudere, please check your e-mail.

[xash]

Thank you for your inputs. We have reversed our decision based on the inputs offered by our members. We are now convinced that the concerns we had when we initially closed the original thread do not apply.

Thank you for helping us make a more informed decision, and for your patience while we deliberated. We appreciate it.

-xash
General Questions Moderator

[Gadarene]

OK, lawyer dopers–there are no circumstances in which you cannot discuss in your own words the secret to any trick, right? Just to make sure I’m clear on this.

Yeah, as far as I know that’s exactly right, at least regarding intellectual property laws. It’s different if you’re under a contractual obligation not to reveal said secret. But that isn’t legal advice, etc. etc.

I’ll actually surf around Lexis later, maybe see if I can pull up any additional caselaw that might be relevant (although it seems like cmason and others have already done a creditable job).

[Algernon]

I simply want to express how proud I am of our little community. Top to bottom.

This has been a very interesting process.