Magic tricks and intellectual property

Factual Questions
21

You’re right. That’s what I was initially googling, but then came across the original thread in question.I even said:

I also “did some actual googling.” :slight_smile:

huh? “demanding”?

Where have I “demanded” anything? :rolleyes: Never did I come across as aggressive, yet I’m being accused of being “demanding”. yeah, thanks for that :rolleyes: My hope is that each of my questions does get answered, but I never expected that as a guarantee, as can be clearly understood from the underlined/italicized portion above.

Furthermore, I’m thanking anyone who replied as I go along. Anyway, please let’s not derail the thread.

Thank you all for replying.

I’ve PMed several of the people (including the lawyers) from the original thread with a link to THIS thread and asked them to chime in as well. I hope they do.

22

I think that’s what he’s talking about. I don’t know what else you want me, personally to add, other than what I stated in the original thread. It was more of a comment back to the admin asking HER a question about how she was moderating, rather than the questions you’re asking. Which I really know nothing about – sorry.

23

Chiming in as requested. I really have nothing to add. I still feel good that my post resulted in a good deed being done. My current location is currently the capital of stealing intellectual property, but to be honest I’ve never seen a magician here.

So other than chiming in as requested, I have nothing else to add.

24

Likewise, and likewise.

The original policy of closing a thread because it revealed how a magic trick is done was a bad one, and the mods/admins of 10 years ago deserve credit for reconsidering and changing it.

25

Gotchya, guys :wink:
But just keep in mind, my OP here wasn’t about your thoughts regarding the mods closing/reopening the original thread…

26

Again.

You can patent a magic trick or device. That puts the description of the patented material in the public domain. Patents are by definition not secret, they are public record and every patent is available to the public, see Search for patents | USPTO where you can search everything.

Reading a patent, and describing how the patented material works in your own words does not violate any copyright.

So if you read the patent of a patented magic trick, and write an article about the patented trick that discloses how the trick is performed, you have not violated any laws, committed any crime, or exposed yourself to any civil liability. It doesn’t matter if this is written, or audio, or video, or how your piece is distributed.

Just like if someone invents a new type of paper clip, you can write an article about the paperclip that discloses completely how the paperclip can be manufactured. The patent itself does this, and any secrets the patent holder keeps to himself will not be protected under patent.

All a patent gets the patent holder is the right to sue violators for damages. No one will enforce your patent for you, you must do so yourself through the court system. So if I perform a patented magic trick or make a patented paperclip in my bedroom with the windowshades drawn and the lights off, no one will ever know and so the patentholder will never be able to sue me.

If I made a bunch of paperclips and handed them out to my friends for free it is very likely that the patentholder will never know what I’ve done. But if he does find out he can sue me for damages, despite the fact that I didn’t sell the paperclips. Selling the patented item is not the only violation, manufacturing it is also a violation, as is distributing them. But the patentholder has to find out, they have to hire a lawyer, they have to take me to court, they have to show damages. Handing out a few free paperclips doesn’t create large damages for the patentholder, so they may decide it is not worthwhile to sue me, maybe they just send me a threatening letter.

Of course, the vast majority of patents are completely worthless, nobody every manufactures or sells or distributes the new and improved patented paperclip. That doesn’t matter.

And of course, the vast majority of magic tricks are not patented, rather they are trade secrets. Trade secrets have some protections–you can’t legally steal them, for instance. But anyone can reverse engineer the secret, figure out how it’s done, and copy it.

And also revealing the secrets might be against a magician’s professional code, so if you reveal The Amazing Zorko’s disappearing belt buckle trick on Youtube, maybe Quandar the Mysterious will pointedly pretend you don’t exist the next time you try to say hi to him on the street. That doesn’t mean it’s illegal to reveal Zorko’s trick.

27

Lemur866, thanks for that post. I feel you’re the 1st person in this thread to actually address my OP properly.

Now, a few questions for you regarding:

In the OP, I mentioned a magic trick that someone (person X) “came up with”. Person X may or may not have copyrighted/patented it; let’s just assume he/she does have a copyright/patent. Person X markets this trick and makes an instructional DVD to sell this trick. So whoever buys this DVD will KNOW how to make it. Furthermore, obviously person X wants people to DO the trick and ASSEMBLE/MAKE the gimmick involved (otherwise, why even SELL the trick, right?), so wouldn’t the idea of the patent-holder “suing” be non-existent? (See next paragraph).

Now, 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. Person Y now knows HOW this trick is done and how the gimmick is assembled/made. Can Person Y 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? It’d be like your friend who learned how the trick is done (somehow) and said, “Hey Lemur866, let me teach you this trick I learned (in my own words)”…

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?
Based on the info in the original thread, I don’t think there’s a problem in this situation. And since that thread is 10 years old, THIS separate thread was made so I can just clarify/confirm some questions.
Thanks again for replying.

28

^^ Just an addition to that post since I can’t edit:
Forget making a video talking about (in one’s own words) how the trick is done/made, can someone just write step-by-step guide (in his/her own words), on how the trick is done/made and post it on their own website? And then can someone who sees that webpage, learn/make the trick?
As aforementioned, based on the info in the original thread, I don’t think it’d be a problem. This thread’s purpose is just to double-check :slight_smile:

29

You need to understand the huge difference between patent and copyright, and it would seem you are still confusing them.

If the trick is patented you can reveal it, but no-one - even if they see how to do it second hand, are shown by someone who knew someone who saw it done once, - and most importantly, and something not addressed here - someone who invented the trick for themselves without ever seeing or hearing the original, none of them are able to perform (or make any patented device needed for) the trick. Now be absolutely clear - this only applies to patents.

Copyright is totally different. Copyright covers the artistic contribution. The words in the description, the actual video, any words or artistic additions - they are copyright. Patents are not subject to copyright, and copyright material is not subject to patenting. This is deliberate.

There are things called design patents. They cover the look of a product - famous examples - Kodak’s yellow colour and Coke’s bottle shape. You can’t sell film in a box that is the same shade of yellow as Kodak used to, and you can’t sell soft drink in a bottle the same shape as Coke’s. A magician could in principle obtain a design patent on the particular look of a trick he has invented (maybe a signature colour of flowers) but just as Kodak can’t stop you selling film in green boxes, and Coke can’t stop you selling cola in any other bottle, the design patent won’t stop you performing a trick with different coloured flowers.

In the real world or patents. Say I invent a new antibiotic. I patent it around the world. I publish in medical press all about it, and everyone can read may patents. Researchers around the world get excited, and perform more research, publish more, many describe the chemistry, you can find articles I don’t even know exist describing my new drug. No-one can make it without my permission and not open themselves up to being sued by me. No-one. This is part of the deal with public disclosure in patents. In return for the exclusive right to produce the invention for the period of the patent, I must tell the world how to do it. If I don’t provide enough detail in the patent the patent can be declared invalid, and I lose the lot. The incentive is that I can make money for the time the patent runs, and I also have the incentive to continue work and improve it (the improvements being patentable in their own right) or find new drugs. The rest of the world gets to benefit by being able to freely make my invention once the patent expires, and has a clear documented legal right to do so.

The answer to your question - if the trick is patented, and the patent is still valid - you have a problem. If the trick is not patented in any way, then there is no problem, so long as you don’t use any of the artistic component (ie cut and paste words) directly.

30

Okay, folks, how many people replying in this thread actually know anything about:

  1. intellectual property law, or
  2. conjuring?

Not many, I’ll bet.

In my youth I was an amateur magician, so I know a little bit.

Basically, magic tricks aren’t protected by copyright or by patent. But there is an informal code of ethics among magicians, where copying someone else’s act is Not The Done Thing. Any magician trying it would quickly find himself in disfavour with other magicians. He wouldn’t get an agent to represent him. He wouldn’t get any bookings. His career would go nowhere.

Example: David Copperfield performed the Portaltrick for years. Other magicians can certainly figure out how the trick works. But no theatre in Vegas would hire The Amazing Copycat.

Some magicians write books describing their tricks. Or they sell the props required to perform it. This makes the trick public domain. Anyone may perform the trick after that. Publishing basically gives permission.
One final thing, I think that Learjeff in post #13 is referring to this trick, performed by an Italian, not French, magician. But this is a standard magic trick, performed by many others, and absolutely not copyrighted or patented.

31

^^ Thank you both for your responses. Much appreciated.

In post #27 in this thread, I gave the example of someone SELLING their trick in the form of an instructional DVD video:

So the question of a patent “protecting” the trick is irrelevant here, right?

And thus:

Also, if you can, can you address this as well? Thanks in advance for your input.

Actually, the following 2 quotes from the poster above already seems to address it, but you can still reply if you wish; I’ll read it.

Yes, this is what I was getting at; in this case, an instructional DVD video.

32

A lot of patents are real hum-dingers. As I said above, my father is a retired patent attorney. He used to show me some of the more amusing ones. You might be amazed at the number of inventions to correct a bad golf swing!

Gee, I guess I wasted my time. Thanks a bunch. Next time I won’t bother.

Let me give you a little clue. There’s nothing wrong with praising an admirable post. What’s less praiseworthy is doing it in a way that’s insulting to people who are trying to help you.

33

This does get very deep into the nit picking of the way IP works. The DVD isn’t selling the trick. The DVD comes in two bits, the physical bit of plastic, which you purchase, and the copyrighted content on the DVD, which is copyright the creator of the DVD content. The DVD might contain a description of the trick, but it does not contain the trick itself (it is difficult question to determine what form the trick has), and purchase of the DVD does not transfer any title or license of the IP of the trick. As has been pointed out many times earlier, almost no magic trick is patented. I keep talking about patents because patents keep being mentioned in the questions. It would be easier if all the questions assumed that there were no patents applicable. The main issue is that magic tricks have no special legal status. They are treated exactly the same as any other form of IP. So the discussion here has no special applicability to magic tricks - at least from the legal point of view. Anywhere in the above you could remove “magic trick” and insert “miracle drug”. The only difference is that the inventor of a miracle drug is much more likely to be interested in enforcing his IP than a magician. Will probably have the funds to do so too.

I mentioned earlier the idea that the purchase of the DVD could include a license, but that would form a separate part of the bundle, and is not part of the physical DVD. Again that would only be applicable of there were enforceable IP in the DVD (this could be a patent - be we should agree that this is almost certainly not going to be the case) or it could include aspects of the trick that could be covered by copyright - a patter to go with the performance - or possibly special music or sound effects.

Then there is the ethical component. If you buy the DVD from a magician who is selling the DVD as an instructional video, with the intent that other magicians can learn to perform the trick, the purchase of the DVD implicitly contains consent that you are not violating the magicians code of conduct by learning the trick from it. Now going off and then revealing the trick with another video - that most certainly violates the magicians code of conduct, and is quite unethical. How much you care is your problem. Maybe someone might turn you into a frog, or more likely, if you ever decided to try to turn your hand to professional performance you might discover no-one will give you a gig.

So, to summarise, patents are almost never taken out on tricks. So patent law simply won’t apply. Avoid using the word patent in any conversation about a trick unless you are certain that the trick actually is covered by a currently valid patent. The moment you use the word “patent” you will derail the conversation in ways you won’t expect. Patent law is very clear, and it has almost zero overlap with copyright, or professional ethics. However if you do think there is a patent applying, don’t try to weasel out of it. If it is patented, you cannot perform the trick, or make, or sell, a device used in the trick if it is covered by the patent. Doesn’t matter how you found out about it. Even if you invented it yourself. You can however freely describe the trick, as the patent is public, and indeed such discussion is explicitly encouraged by the patent system. If you have trouble with this, try substituting “miracle drug patented by multi-billion dollar international drug company” for “magic trick” in the question, and see if you can guess the answer. The way it works is identical. Again, magic tricks are not special.

34

Just to add, a couple things.

Unless the purchase of the the DVD explicitly contained a license to use the copyright or protected content in a commercial way, it does not contain such a license. Any advertising of the DVD would most certainly include mention of any such license, as it is additional value in the purchase. It isn’t some intrinsic component of purchasing a DVD.

It is illegal to represent something as being covered by a patent or that a patent has been applied for if in fact this is not that case.

35

I apologize if that came out the wrong way. Didn’t mean it as an insult. I felt that his/her post addressed my OP the most up to that point. I genuinely thank you and everyone for your posts.

1st off, thanks for your input.

2ndly, this particular DVD/trick is just a DVD; you HAVE to build the [simple] apparatus yourself. Although, it also does come with another piece to use with the apparatus that you have to build, but someone who didn’t buy the DVD [ie:who learned this trick from a friend/internet/website, or somehow watched the DVD] can substitute that piece with something else found at home.
By the way, so the answer to the following question, is “Yes”, correct? Can someone just confirm?

36

Something else, maybe related: isn’t a ‘trick’ BOTH the result as seen by the audience (the illusion?) AND the particular method it is achieved by?

Alex the Magician comes up with a trick in which he puts a lump of charcoal into a box, waves a wand over it, and opens the box to reveal it has turned into a diamond – from the POV of the audience.

Bob the Magician hears about this, thinks Good Idea! and puts what looks like the same illusion into his act.

But Alex is using sleight of hand to switch the diamond in while placing it in the box, while Bob uses a box with a secret compartment.

Are they doing the ‘same’ trick?

37

When Shawn Farquhar fooled Penn and Teller, he stated the original effect was by George Schindler
but he had come up with an entirely different method.

38

If the trick is patented, anyone can make a video on how the trick is done, but nobody can perform the trick without some exposure to the (probably remote) possibility of being sued. The probability of being sued goes up with the publicity profile. That is, someone doing it in a local amateur hour is unlikely to be but if David Copperfield performs it on TV chances for a suit are much higher.

If an original video of the trick is copyrighted, and if your video explaining the trick is in any way copying that video, then you’re subject to copyright infringement. However, anyone can perform the trick assuming there’s no patent. If you saw that video, it might be difficult not to copy it. If you never saw it, then you are clear in theory but in practice you might still get nailed due to bad luck (you happened to use very similar words or explanation). For example, if you learned the trick from someone who saw the video, chances are good you may accidentally or incidentally copy the video even though you never saw it.

When I talk about patents, it doesn’t really matter whether it’s a patent on the trick itself or the device, assuming that the device is necessary for the trick.

39

I would say they’re doing a different trick, and that would be significant for patent purposes.

But let’s say someone used the trick for the first time in a movie. Then someone else made another movie using what looks like the same trick. That second movie could be held as a copyright violation, and it doesn’t matter whether the trick was even actually performed (versus using trick photography) or performed differently. Of course, this would apply only if the original trick is sufficiently novel based on its appearance. Making a rabbit appear in a hat or a coin to disappear from under a handkerchief wouldn’t be very novel.

40

Of course, nothing in this post has anything to do with IP law. The magician’s code has as much standing in a court of law as the pinky swear I made with my six year old friend Stevie 40 years ago that I wouldn’t tell his mom that he left the gum on the couch. No one gives a fuck about it except magicians.