Magic tricks and intellectual property

First off all, Hi everyone, my first post here [and it’s going to be a long-winded one] :stuck_out_tongue:

Sorry for bumping this OLD thread but I came across it while browsing the web, and I’m very glad I found this thread.

The information in this thread cleared up many misconceptions about this matter. I just have some questions and I hope you guys can provide correct answers. Please read it all carefully and reply to each question. And here I go…
1- So, as I understand it from this thread, if someone reveals how a copyrighted/patented magic trick is done in their own words, then this is legal. Is this correct?

2- If the answer to Question 1 is “yes that’s correct, it is legal”, then can someone explain the whole patent-rights thing? Doesn’t it say that the patent owner has the right to the USE of the trick? See the bolded portion in the quote below:

What’s exactly meant by “using” the patented item?

3- Now I’m getting to the crux of my post. Let’s say Person X “makes” and markets a particular trick and puts it up for sale as a DVD instructional video (copyrighted/patented and all). Let’s say this trick also entails a certain gimmick/apparatus/design for it to work (an apparatus/design which everyone can easily make at home after watching the video… in fact, it might have to be made at home, but whatever…). If Person Y who has seen this DVD by buying it (or not by buying it) [that can be a topic for another thread], but anyway let’s say Person Y sees this instructional DVD video for this magic trick/product. Can person Y who now knows HOW this trick is done make a Youtube video legally [IN HIS OR HER OWN WORDS] on how this trick is done, along with how the design/gimmick/apparatus is made?

And regarding the bolded/underlined portion of this quote:

Is my 3rd question a relevant application? (regarding the design of the trick). If it is a relevant application, then where does this entire discussion/thread go?

4- Whether the answer to my 3rd question is “yes, such a video is ok to make” or “no, such a video is not ok to make”, IS IT LEGAL FOR PERSON Z TO GO ON YOUTUBE AND VIEW SUCH A REVEAL VIDEO? Is there anything that would lawfully prevent someone from viewing such a Youtube video and learning the trick / how the gimmick is made? (Feel free to talk about the ethical correctness/incorrectness as well if you wish, but my main thing is about the legality of the matter).

5- If the answer to question 4 is “yes it’s ok for someone to view such a reveal video and learn/make it at home for non-commercial purposes”, where can Person Z perform this magic trick legally [especially if no financial gain is in question]? What constitutes “public” places and what doesn’t? I know that question may sound silly, but you can never be too safe when it comes to things like this. Can you perform the trick to your friends at the park? To strangers at the park? Again, if no financial gain is involved.

6- Regarding ‘similarity’…

If the magic trick that Person Y learned from Person X’s instructional DVD involves making a setup/gimmick, then naturally there HAS to be a similarity between Person X’s gimmick and Person Y’s gimmick. So what’s the deal here?

Also, what about the bolded and underlined portion of the following?:

[quote=“Metacom, post:69, topic:254775”]

This is a legal discussion, so lets look at the actual statute!

Does this conflict with the whole ‘similarity’ thing?
Anyway, I want to thank whoever read all of this in advance, and thank anyone who answers some of my questions, and extend my special thanks to anyone who addresses EACH of my questions.

[Moderator Note]

This post was originally made to this thread in the BBQ Pit from 2004. Since the questions are most suited for GQ and the Pit thread is old, I’ve split this into a new thread with a link to the old one for reference.

General Questions Moderator

Before we get started, we need to make clear the distinction between copyright and patent. Patents cover inventions or techniques, while copyright covers works of art. A magic trick is patentable, although I suspect that most of them aren’t, since one part of the process of getting a patent is that you have to make your invention and how it works known to the public. A magic trick isn’t, however, copyrightable, though something like the exact patter the magician uses while performing it, or a recording of the magician doing the trick, is not.

So, if you describe how a trick is done, you’re in the clear, though you might get some dirty looks from magicians who would rather you didn’t. If the magician who invented the trick has told the world how it’s done so he can patent it, then you can’t do the trick for an audience yourself without the inventor’s permission. If the magician who invented it has chosen to keep his methods secret, then if you figure out how he did it, you can do it too.

^^ Thanks for the reply.

The link that Chronos provided to the original thread makes the distinction.

So what about Person X and Y in my original post with regards to this?

Can you elaborate on the bolded/underlined portion? What constitutes an “audience”? Also, do you mean a PAYING audience?
And thanks to Chronos for making this thread.
Please, can everyone go through the Original 3-page thread and then refer to my OP in this thread?

Thanks in advance.

As one of the moderators of this forum, it’s Colibri who deserves the thanks for splitting off this post and linking back to the original thread.

That’s not to minimize Chronos’ excellent contribution to the thread. But Colibri’s the one with the extra special powers to get that sort of duty accomplished.

Do’h! Yes, you’re right. I meant to thank Colibri! Both of their usernames begin with a C, so I got confused :smiley:

oops, I meant Person Y and Z.

The actual textual content of a patent is not covered by any IP protection. That is indeed the entire point of a patent. You can quote, rephrase, paraphrase, retell, whatever, the entire content of a patent. So, if the trick is patented, you can absolutely make a video describing the technical aspects of the trick. You can even charge for that video or DVD. You can go on prime time TV and reveal the entire contents of the patent. But you can’t perform it.

However, I would imagine, a person purchasing a DVD from the inventor of the trick, is granted a non-exclusive, non-transferable license to use the trick. This might be under restricted circumstances (ie not for profit, or not on TV, whatever.) But a licensee gets the right to use the trick from the owner of the intellectual property. So a third party DVD might describe the trick, but a purchaser of that DVD would not receive a license to actually perform (or make any needed device) as described in the patent.

Both the original DVD and the third party DVD are copyright by their creators. As noted above, if there was a specific patter that went with the trick, that would be subject to copyright as an artistic work in its own right. Fair use provisions would apply to it, so you probably be able to include selected quotes in the third party DVD, or a description and discussion of the patter, but including the totality of the patter would put you in the firing line of a breach of copyright.

Again, we might assume that a purchaser of the original DVD might be granted a non-exclusive, non-transferable license to use the patter as part of the purchase. If the third party DVD provided its own line of patter that did not obviously derive from the original one, that new line of patter would be copyright by the author of that DVD, and even the originator of the trick would not be able to use it without appropriate licensing.

^ Thanks for replying.

Can you elaborate on the bolded/underlined part? What do you mean exactly? “Can’t perform it” for a paying audience? (which would be financial gain). Surely, it can be performed at home or at a friends house, or at a family reunion?

In my hypothetical scenario in the OP, I didn’t mean a 3rd party DVD, I just meant someone who has seen the ORIGINAL DVD, and made a simple homemade Youtube video (ie: a 40-second clip) on how the trick is done and prepared.

The thing is that violating a patent in a manner that could attract action is doing something whereby the owner of the patent can show they suffered some harm. Then they sue you, for both the value of the harm, and possibly some additional damages. Selling something they have patented clearly does them harm, as it takes away a potential customer, and undermines exclusivity that helps them maintain pricing. The trivially have lost a sale to you (if they sold licenses), and unlicensed use of the trick could undermine its value as it dilutes the value it has when they perform it. (You don’t want audience members going “Ha, that tricks is old, I saw Joe do it at the family’s last reunion”.) You don’t have to make money or perform publicly to cause harm to the owner. Clearly in the real world, performing at home isn’t likely to attract the attention of the patent owner’s legal team, but the notion that you can do harm to them does remain.

Many of the DVDs sold of tricks are intended for professional magicians to use. Not the big name TV stars, but the guys that make some money on the side doing kids parties, busking, etc. But professionals none the less. They are prepared to pay for the DVD and the right to perform the trick (if the trick is actually protected) and unlicensed performance of the trick undermines their business as well. In general, IP licensees expect the holder of the IP to go after illegal use, as it protects the value of a legitimate licensee’s investment in the IP in the first place. Anything that diminishes that value is open to action.

There is no real distinction between a YouTube video and a third party DVD. That is the media, not the content. The content is third party. If it is just on YouTube the rights of the creator of that video probably has a more difficult time protecting their original IP than if they sold it, but the principles remain.

Most of the above applies to pretty well anything you can think of if it is patented. In general I doubt many (if indeed any) tricks are actually patented. Magic tricks have a long history of protection simply via a code of ethics amongst magicians, both professional and amateur. The the Internet World[sup]tm[/sup] this is breaking down. Luckily most people still enjoy the fun and wonder of a well done magic trick, and don’t spend their time spoiling it by Googling them.

However, if you insert some other more valuable patent into the above, you can get an idea of how things work.

This is why I made the OP, to clarify the things I read in the Original 3-page thread. Because in the Original 3-page thread, almost everyone (including lawyers and non-lawyers) seem to agree that there’s no harm done, considering no financial gain, and using one’s own words.

Please see the 2nd to last quote in my OP where it says “How do I protect my idea?”, and also the final quote in my OP where it says “United States Code Title 17 Chapter 1 Section 102(b)”.
Also, let’s say someone watches a Youtube video on the reveal of said magic trick; that person can learn, make, and perform the trick privately, legally, correct? This person never forced anyone to make a Youtube magic trick reveal video. He/she just came across it on youtube.

Can someone from the Original 3-page thread also please comment?

By the way, I just picked up on this:

Whoa, whoa, first of all, nowhere in the discussion was SELLING someone else’s patented product mentioned. Did you read and understand Original 3-page thread or the OP?

Seriously, I would have thought it was obvious that the point about selling was intended to place a bound on the range of infringement. Doing so allows the rest of the argument to be placed in context. I am not duty bound to only address the exact and precise example you give without touching on the context. No, of course you didn’t ask about selling, but read on, and notice that I then move to show how you don’t need to actually sell something to cause harm to a patent holder. You asked about private versus paying audiences, and selling the trick is a bound on this, wider than just a paying audience. That is the point.

Now the point about the linked thread is that it was talking about magic tricks in general. The argument there was about the nature of IP protection that any magic trick invention has - not just one that might be patented. And in reality essentially none are patented. Most of what I wrote about was in the context of a hypothetically patented trick (i.e. it might need a patented device to perform) and I would have thought it was clear that again, this sets a bound on the situation - no patent - only copyright applies, and here only in the limited way described.

A design patent is about the only way that protection of the IP can be done. No patent, no protection. I would have thought that was clear.

My guess is that a performing arts copyright could apply, just as it would for a play or a movie. It would cover far more than the “exact patter” just as it does for a play or movie, where the story itself is covered. With a musical PA copyright, you don’t have to copy the exact lyrics or guitar licks to violate the copyright.

Almost everyone was almost certainly wrong. Copyright and patent rights exist regardless of financial gain by the infringer. For example, youtube polices copyrighted songs and videos regardless of this. This is extremely well-established. I suppose I’ll have to find a cite, which I think I can find at (for copyrights).

However, for practical purposes one could be safe, simply because the patent or copyright owner might not be interested in bothering to file suit. Note that in most cases, copyright and patent infringement is a civil offense, not a criminal one. The DA isn’t going to come after you. (Notable exceptions for piracy and violations of DMCA.)

It isn’t possible to police, so it’s effectively not covered. If I play Stairway to Heaven on my guitar in my living room, who’s going to sue me? There is probably precedent to establish this as well, but I’d have to ask my father (retired patent attorney).

In general, anyone selling a video of their own tricks and showing how they’re done would be silly to go after his customers with lawsuits. Clearly we’re talking about a 3rd party situation, where someone reveals someone else’s trick. As noted above, revealing the trick is not only legal, it’s absolutely required in order to get a patent. For a copyright, the way a trick is done is not covered, but the appearance of the result is. To have much “grounds” (that is, wide coverage), the appearance of the result would need to be original. For example, making something disappear has been done many times, so to protect it with a copyright, there must be some additional novel element. (This is probably what Chronos was talking about above when he said they weren’t copyrightable. I would bet that they are, but only for novel appearances.)

Here’s a great example. There’s a famous French magician whose name I don’t recall who pulls a volunteer from the audience and does a disappearing trick for some tissue in his hand, to the volunteer only. Everyone in the audience sees how the trick is done. In this case, a copyright would cover the appearance, but the essence of the trick is apparent to all (but the volunteer) so it would be covered too. To the extent that it’s a novel performance, and recorded in some fixed medium, as is always the case for a PA copyright.

I don’t promise to follow your rules.

Yes. As I said above, if it’s patented, you HAVE to reveal it in the patent anyway, so it’s “public domain knowledge”. Anyone is allowed to know about it or discuss it. This is one of the primary benefits (to the public) for providing the monopoly of a patent to the inventor: so that novel ideas can be studied and learned from rather than kept as trade secrets. (The other main one is to encourage investing in research, and is the bigger of the two IMHO.)

As I mentioned above, using it privately is not policeable.

Yes, with an exception. If they’re copying the original video the watched, that’s a copyright violation. It’s a big gray area here. Look at it this way. If the second video looks like plagiarism of the first, then it’s likely to be violating the first video’s copyright. There is no patent violation possible here. (Note: saying “I got this from xxx” avoids a charge of plagiarism, but isn’t what I’m talking about here.) I’m not positive about my interpretation here, so take this with a grain of salt.

I don’t know. It might be, but enforcement is unlikely to be applied to casual users. Consider illegal downloading of copyrighted materials in general: they tend to go after folks who’ve downloaded lots and lots, not just one or two. Furthermore, these lawsuits are filed by a company with deep pockets to make a point (“Don’t download freebies or we’ll bust you because it hurts our bottom line as a record company!”)

Good question; I don’t know. However, keep in mind that financial gain doesn’t affect the legality, it only affects the incentive for suing and the extent of awards. (Of course, that may make it non-risky, considering nobody’s going to bother to sue to collect a pittance.)

Be Real, several things to take away from this thread.

First, you need to educate yourself about the differences between copyright, trademarks, patents, and trade secrets. They are all separate parts of intellectual property law. If you lump them together you start in a level of confusion that’s hard to climb out of. The strictures and penalties for infringement also vary, and what may be a violation in one may not be in another. People can give general advice, but only the facts of an individual actual case can determine the outcome.

Second, IP law is extremely difficult to apply to hypothetical situations. Violations are not always spelled out in the laws and the cost of court means that many issues don’t have a good body of case law to apply. Most copyright cases, for example, get settled out of court. The concept of Fair Use in copyright is almost always misunderstood. It is not defined in the law and courts provide a four-part test to determine infringement, only one of which concerns money made. This is why general advice is so hard; some areas are fairly clear, others aren’t.

Third, while the default number of posts appearing on a page on this Board is 50, you can go into User CP > Edit Options and choose from a range of 5 to 200 posts to appear on a page. Fore me, your three-page thread is a one-page thread so the words you choose are confusing.

Fourth, you’re not going to get far demanding that people answer your posts as you desire. Your confusion about patents and copyright make your questions unanswerable in their present form. People are trying to answer what they think you might have meant if you understood the issue better. They are doing a very good job of it. But they’ll never all agree perfectly because each is necessarily going to envision a slightly different set of facts for a hypothetical. If you want legal advice, go find a really good IP lawyer and be prepared to pay for it.

Just to clarify: both SELLING and GIVING AWAY someone else’s property damages the owner of the property. Francis Vaughan was correct when he said selling causes damages, but so does giving away, for the same reasons he cites. Again, the only difference between selling and giving away is how ‘egregious’ the violation would be considered. It does not apply to actual damages (how much the owner lost in sales) but can definitely affect punitive damages (which can be up to three times the actual damages).

Pay attention to “actual damages” here. If you’re playing the trick in a local pub’s amateur magic night, how much is the owner losing? Not much, individually, though it could add up if it happened in thousands of pubs across the nation. Musicians are protected in this regard with “Performing Rights Organizations” such as ASCAP and BMI, who have agents in most areas, who scout for venues where popular music is being played, and they demand fees from the venue owner.

If the magic industry has PROs, I wouldn’t know, but I’d be surprised since there’s no big money behind it like there is in the popular music industry. I’ve heard of coffee shops being hit on by PRO agents for their open mic nights (which gives the PROs some bad publicity, and most agents show a bit more leniency, focusing on more profitable venues). I’ve never heard of this happening for a magic amateur hour. But then, I’m a musician, not a magician.

Great post.

The exact details would depend on the wording of the patent. A patent can cover a technique, but a technique to do what? In the event that a magic trick is patented, it’s probably something like “A technique to amuse an audience by producing an illusion of…”, or something like that. So if you’re practicing the trick alone in your own bedroom, you’re not using the technique to amuse an audience, so you’re probably fine. If you’re doing the trick at your nephew’s birthday party, though, you are using the technique to amuse an audience, and thus would technically be in infringement (though enforcement would be highly unlikely). And if you’re creating a video to explain how the trick is done, with just the right camera angles and slow-motion to see the details of the trick, you’re amusing an audience, but not by producing an illusion, so you’d also not be in infringement.

And again, all of this is moot if the owner of the rights has given you permission, and as Francis Vaughan pointed out, this is likely the case for DVDs sold by the inventor of the trick. Read the fine print.

As background, here is the Wikipedia article on intellectual property and magic tricks.

Well, summagun. Someone did some actual googling. :slight_smile:

From that:

This is misleading.

I can copyright a song by recording it. (BTW, computer memory serves as “tangible media”.) That doesn’t cover just the recording, but the song itself as well. I see no reason why there would be a difference between magic and music in this regards, except that copyrights cover works of an “artist”, so only that part of magic that’s considered “art” would apply. Be careful not to extend the “idea-expression” dichotomy too far. If someone else records my song in a different key, with a different voice, using different instruments, a different arrangement, etc., if it’s still identifiably the same song, it’s covered. (Example: “She’s So Fine” vs. “My Sweet Lord”)

This part is more to the point:

This means that copyrights are rarely used to protect magic. The reasons could be many and diverse.

Recently, courts and laws have gone towards granting more intellectual property. I’m a big advocate of strong IP laws, but I feel they’ve gone way overboard. The rest of that discussion belongs in Great Debates, though. My point here is that old decisions might not be good guides to what might happen today.