Also note, that a third party might make a video or write an article describing how to perform a patented magic trick, or manufacture a patented paper clip.
But they couldn’t actually manufacture the patented paper clip, or perform the patented magic trick in the process of making the video. So if part of the video involves demonstrating the trick, that would violate the patent.
And making a video describing how to make a patented paper clip, even if you are the patentholder, does not give a person who buys the video the right to manufacture the paper clip. That is a separate issue. The patentholder would have to sell or give a license to create the patented material but an instructional video or article would not convey such a license.
And of course, a copyright is a different thing, as is a trademark, as is a trade secret, as is a professional code of ethics.
But in this specific case, it’s an instructional DVD that someone mass-produced and put up for sale, thereby implying that he/she wants people to buy it, make it, and use it… so why would he/she sue?
Also, as I asked before, if someone buys the DVD and learns the trick, I feel that this person can teach it to their friend/sibling/etc. Even if this person didn’t buy the DVD and sees the video (maybe at a friend’s house who has the DVD already or whatever) or learns the trick somehow, I feel there’s nothing wrong with this person making and performing the trick. (and when I say “performing the trick”, I’m not talking about performing it in front of a paying crowd or whatever… just to your friends/teachers/colleagues/etc). Now that I think of it, this thread was unnecessary; if I go to a magic shop and buy a trick, or if my friend goes to a magic shop and buys a trick and teaches it to me, I can make it at home with my own materials (of course not a 100% copy).
This feels a lot like groundhog day. To try to be concise.
There is nothing special about magic tricks. They are offered exactly the same protection in IP law as any other. In any argument here substitute “new super drug” or “joke routine by international star comedian” and see where it takes you.
It doesn’t matter what you feel is right. From a technical point of view any violation of someone else’s IP rights remains a violation. The thing about IP is that it is up to the owner of the rights to sue you. You will not get a knock on the door at 3am from the local constabulary and get carted off to gaol. You may get anything from a nastygram from their lawyer to the unleashing of the legal attack dogs. For almost all IP rights holders it is about money. Unless they see some value to themselves in taking action, they won’t. (That said, there are lawyers who trawl about the internet looking for IP violations, they send nastygrams, and then send the IP owner a bill. Again, it is all about money.)
Copyright and patents are totally different in the way they work. The logic that works for one typically won’t work with the other. You can’t break a patent’s coverage of an invention by restating it in your own words. You can’t even avoid it if you are totally unaware the patent exists and you reinvent the patented IP yourself. The original patent holder got there first and you have no rights. Unless you are explicitly given a license to use the patent’s IP, you haven’t got one. Selling a DVD describing the patent does not implicitly grant such a license. Such a sale could include one, but unless it explicitly does, it doesn’t. The DVD’s purpose could be to publicise how great the invention is - all the way down to exactly describing every step. But if you want to do it yourself, get a license.
Virtually no magic trick is patented. So the above almost certainly doesn’t come into play. But magic tricks are not special - if you mention patents in the discussion you have to get it right. You can’t come up with some reasoning about the nature of the DVD that “feels right” or is reasonable to you in the particular circumstances.
I understand that this is how you* feel *the law should be, but it is not, in fact the way the law is. If a magic trick were patented, watching a video explaining how to perform the trick, even one produced by the patentholder, would not grant you a license to perform the trick, whether you charged money for it or not.
Again, it doesn’t matter that this is a magic trick. Magic tricks are almost never patented. But IF a magic trick were patented, and the patent were upheld, you could be sued for creating the magic trick, whether you performed it for free or charged, whether you performed it for your buddies or on national TV. The only questions are, how likely is it that the patentholder is aware of your violation, what their damages will be, and whether it would be worthwhile for the patentholder to try force you to stop.
The other question is if the particular magic video you watched does, in actual fact, show how to perform a patented magic trick. And it almost certainly does not. But IF IT DID, it would be a violation to perform the trick, even for free, even for one person, even if the guy who put out the video was the patentholder.
The existence of an instructional guide on how to construct a patented item does not give you license to violate the patent, regardless of who created the guide. Again, the PATENT ITSELF is an instructional guide on how to construct the patented item, and the patent is public.
Not exactly. The kit that contains the apparatus and explanation you buy at a magic shop is, almost certainly, not a patented magic trick. So if the trick is not patented, which it almost certainly is not, then you are free to make it at home with your own materials and perform it however you like. You wouldn’t even violate the Magicians Code, since any trick you can learn from a kit in a magic shop is fair game and isn’t the “property” of any magician, if it ever was.
Just like you can read a book on how to make a chocolate cake, and go home and bake a chocolate cake, and then write a recipe on how to make a chocolate cake in your own words, and you have not committed any sort of violation of copyright. And since chocolate cake is not novel, but has existed for hundreds of years, it is not patentable. Note that patents only last for 20 years, so any patent older than that has expired and the invention is now in public domain. However, the particular sequence of words used in a cookbook is under copyright, you can’t just Xerox a recipe from Betty Crocker and distribute it, that particular sequence of words IS copyrighted.
So you can learn how to perform the three-card monte from a book, and then write another book on how to perform three-card monte, and you will not violate copyright on the first book as long as you don’t copy the words and illustrations of the first book. And you can stand on a street corner and perform three card monte, because three card monte is not patented, like almost all tricks are not patented.
I think the “thread finished” folk are missing some subtleties.
E.g., the DVD issue. If the DVD comes with a “shrink wrap” license that states that the buyer promises to obey the enclosed Magicians Code, etc. Then there might be grounds for a suit if you start retelling the secret of the trick. But note that gets into the issue of validity of shrink wrap licenses which is far from resolved. (Which means expect to throw money at lawyers, which is pretty much a lose in my book, regardless of eventual outcome.)
Note that duplicating a performance is also a copyright violation, even if you change the patter. If you duplicate the motion and such, then you are copying the “video” of something and that’s against the rules as well. How much you have to change to avoid a lawsuit is again poorly defined. So to play it safe you need to change a lot. But then is it the same trick?
In Hollywood, people get their noses out of joint all the time if someone steals their idea for a movie or TV show. (There’s one just starting over The New Girl.) These invariably lose unless the originator shows that at some point they told the copier their idea in some way. In particular, was there an implied business relationship? (Which is why everybody hates unsolicited scripts. They return those unopened if they can.) Would the same rules apply to magic tricks? “Hey, I showed you my trick and you copied it!” A public performance wouldn’t imply a business relationship. But a private performance like in a workshop? Do magicians put fine print on the backs of tickets?
You would probably get into an interminable argument about the division between the artistic content of the moves (copyrightable) and those parts of moves fundamentally required to effect the trick - which are arguably not artistic - and therefore not copyrightable. That is, if you accept that the trick is a technical component of a performance, and not in and of itself an artistic creation.
I am reminded of a David Copperfield show from a long time ago - where he flew on stage. This was a routine where there could not possibly be any doubt about the technical mechanism of how he flew - like any stage flight since time immemorial he was flown on wires. The show however was superb. Where the real artistry came about was the total perfection in the timing and control of accelerations and velocities tied to his gestures and movements. The interplay between the guys driving and the performer were perfect, and an utter joy to watch. (Personally I get a much bigger charge out of watching and appreciating such technical mastery than the actual show itself. The stage production, was to be honest, like a lot of his work, directed at the fairer sex.) The point? I would say that the routine would be subject to copyright, and it would be a brave stage magician that attempted to clone it, even deriving a different show. It was magic as performance art, not magic as technical trickery.
