Josh Burch
4/14/2014
Magic and How It’s Tough to Protect
I’d love to dive head first into the world of magic tricks, magic apparatus and magic
performance and how they're protected by the law, but before I do so I need to lay some
necessary groundwork. The first thing that isn't widely known by the general public is that most
magicians don't create their own magic. Just like Celine Dion, Britney Spears, or Justin Bieber
have songwriters, almost all magicians use somebody else's invention to accomplish their magic.
This comes as a surprise to some. Yes, that means that when David Copperfield made the Statue
of Liberty disappear he did not create the trick by himself. He had the help of Jim Steinmeyer
and Don Wayne two incredibly creative magic creators and designers (Steinmeyer). The same
goes for almost every other magician that you'll ever meet or watch on TV. Virtually everyone
has bought some part of their act from somebody else. Whether it's the tiniest piece of sleight of
hand or a complete trick, with choreography and scripting they got it from somebody else.
The next thing that we need to understand is that selling the secrets of magic is an
underground industry and the rules of the market are unique. It is largely a gentleman's game and
you have to trust your colleagues not to copy. You can be shunned if you don't do your
homework and unwittingly copy somebody else. As Maxwell Murphy, owner of
penguinmagic.com, one of the largest magic retailers on the web, said “Many competitive
behaviors that are perfectly acceptable in other markets are unacceptable to the magic
community” (Murphy 12). It's a paradox where even if the trick is more affordable and higher
quality magicians are programmed to go to the creator of the trick and to get all up in arms when
a publisher does not properly credit what came before. “Outside the magic market, there is a
category of items called “house brands” or “generics”...This category doesn’t exist in the magic
market. An item is either original, a classic, or a knock-off...the magic market is different than
other markets.” (Murphy) One reason I believe this is so being because the law provides
relatively little coverage for magic creators. Take the case of P.T. Selbit.
P.T. Selbit may be the most influential magician that you have never heard of. He passed
away in the 1930s but worked hard as an innovative magic creator and professional magician
through the late 1800's and early 1900’s. P.T. Selbit invented possibly the most iconic magic
trick of all time. He created the first, rather crude, version of sawing through a woman. At this
time other types of artists played with grotesque themes. He followed suit in his magic, creating
one mutilation after the other. He had many ways of simulating torture and he created crazy feats
of stretching and dismemberment and other super-natural ways to contort the body. The one that
stuck was “Sawing Through a Woman” (Christopher).
His creation was crude when compared with modern versions of the trick, but it is
rumored the women fainted during its performance(Steinmeyer). The image was very strong, and
Selbit’s rivals knew it. One of these rivals was Horace Goldin who heard of the trick 5 months
after Selbit performed it first. With a little thought Goldin threw together his own version of the
trick, began performing it immediately and had the guts to file a U.S. Patent two years after to
“prove” it was his (Steinmeyer, Goldin). You would think that the patent would stop any other
copy cats but it ended up doing almost the exact opposite. Rather than protection Horace Goldin
willingly published his secret in the public domain and perhaps because of the public's access to
the patent. Pretty soon every big magician performed a different type of this illusion and the
tradition continues today.
Even though this trick, possibly more than any other trick in history, was ripped off
relentlessly by magicians, they did so legally. For the most part if Goldin was to press charges
against his copycats he probably wouldn’t have any chance in court. According to patent law it is
only necessary to make a significant change to the original design in order to create a new patent,
most magicians made changes anyways (Steinmeyer, Crasson, Goldin v. Clarion Photoplays).
All patents are publicly available, it is like that so the inventors can continually improve on
others designs and create better inventions. this is exactly what happened in the magic
community, magician after magician began creating their own versions of Selbit’s sawing. crazy
versions began popping up, Selbit used packing crates, Thurston used lacquered boxes,
Blackstone removed the boxes. They began naming it differently too, with names like “Cutting
Asunder”, “Slicing the Mid-section of a Girl” and “Alive at Both Ends” (Steinmeyer,
Christopher). The very document that Goldin made to protect the trick may have been the very
document that allowed it to be copied.
This is a perfect example of what has happened when magicians tried to protect their
magic with the law. Copyright law isn’t there so much to protect original ideas than it is to
produce more original ideas (Crasson). This is why every patent becomes public record when it
is filed. It has to be that way so that those who want to innovate have an easy way to see what
has come before. This works great in many industries, but it has the potential to completely
destroy that which makes a magic creation special, its secret.
Most magicians don't bother with patenting their magic tricks at all today. While the
secret is a big part of this it is also because much of what they do to innovate has no way to be
protected. Not every innovation in magic relies on a device that can be patented. Dai Vernon for
instance or Edward Marlo, both were world famous sleight of hand experts that created
thousands of moves between the two that are used by virtually every magician in the world in
some way today (Racherbaumer, Ganson). The types of moves they created are deceptive ways
to count cards or specific touches that you would use while inserting your card into a deck. They
created ways to unshuffle decks of cards and change one card for another invisibly, their thinking
was revolutionary. They created so many pieces of sleight of hand that if their inventions were
written down on a single playing card that stack of cards would be almost three stories high (Ed
Marlo, Dai Vernon). Here's the catch though, while you can copyright choreography in a dance
you cannot do that to a piece of sleight of hand(Crasson). There is no agreed upon way to
document ownership of a piece of sleight of hand.
So, how did Vernon and Marlo protect their secrets? They went outside of the law. Marlo
and Vernon lived at the same time just after the era of P.T. Selbit. They slowly rose to fame in
the 1950's and 60's; Marlo in Chicago, Vernon New York and later Los Angeles (Ed Marlo, Dai
Vernon). Their approaches to protecting their intellectual property was slightly different but very
similar. They published the material in books, and lecture notes. They each had a large schools
of sleight of hand magicians and they engraved to the idea of crediting into their minds (Ed
Marlo, Dai Vernon). Marlo especially capitalized on the idea of crediting. If you read through his
notes you can see how careful, he was to point out exactly where he learned a new move or
exactly how he figured it out (Racherbaumer). What would be perfectly clear was that he was
sure you knew he created the move. After years of gathering his ideas he would take and write
them in a book, publishing it so that in order to learn the move you had to actually buy the book,
if there was any question about who made a move first he would have his proof in print. Of
course Marlo could control who he sold the book to keeping it out of the hands of the general
public. He could also add other determining factors like where he sold the book or how much the
book cost further eliminating accessibility to his tricks. Here as long as his book was actually
printed nobody could use his printed words without his permission but it never stops somebody
from performing the sleight without permission from Marlo(Loshin).
It should be noted here; it is a misnomer that magicians don't reveal their secrets. They
do, just rarely, and in certain circumstances. Every magician has to learn their secrets from
somewhere. It is only morally acceptable though, in the mind of a magician, that we we learn
those tricks in a certain way either with the creator's blessing, through a mentor apprentice
relationship, or through a book, video or lecture notes (Murphy). This is another one of those
things it is a little unique when it comes to magic.
Today there are as many magic creators as ever who wish to protect their magical
creations and inventions and there are more platforms than ever for publishing magic. There are
magic magazines, journals, newsletters, websites, forums and social networks for magicians. It's
easier than ever to self-publish, whether you prefer eBooks, video or YouTube, there are many
ways to make sure the public knows that you created something and that you get the credit.
It is also easier than ever for somebody to rip you off. We established earlier that a magic
Creator might sell a book or DVD documenting the secrets of their magic, this might be
comparable to sheet music for a composer, or a script for a playwright. According to Axel
Hecklau, a world famous magic Creator from Germany, a magician does not have the right to
perform a trick unless they have purchased the book or video that teaches that trick (Hecklau). In
musical theatre you have to pay royalties for every performance. If you don’t pay you don’t gain
access to the script. To some extent this protects a playwright’s creations. The performance
rights of a play are protected under copyright law, for some reason magic doesn't translate in the
same way that theater does(Crayson). There are instances, for example the case of Penn and
Teller which I will touch on later, where some of these laws kick into play but for the most part
magic performance remains unprotected as well as the reproducing of magic material obtained
legally. So the common scene plays out on YouTube. A 13-year-old goes to the magic store and
purchases a $40 DVD which teaches a few sleight of hand techniques. They then, without
breaking a single law, can turn around and make a new video to post on YouTube explaining
every technique on the DVD. Even worse than that, this kid could get a nice camera and film a
new DVD using the exact same techniques in the exact same ways. While it’s clear that this is
plagiarism and morally wrong it is not illegal. It would accomplish virtually the same thing as
photocopying pages from a book but there is no protection (Crasson).
Magician and trained lawyer Rick Lax explained the tactics that Theory11, the popular
publishing company for magicians, uses to protect themselves against YouTube exposure in a
recent article. I think that it is easiest to explain if you hear the story the he used. I'll paraphrase:
there once was a farmer who happened upon a leprechaun in the woods, when he caught the
leprechaun he said “You need to show me your gold.” So they began to walk deep into the forest
and the imp pointed to a tree saying “Under this tree is where the gold is buried.” The man was
ecstatic and tied a yellow ribbon round the trunk of the tree. He ran back to his farm house to get
a shovel, upon his return to the forest his heart sank. The Leprechaun had tied an identical yellow
ribbon around the trunk of every tree in the forest. With each tree indistinguishable from the next
he had no way to remember which tree had the gold (Lax, Rick. "Is The Internet Transforming).
It’s a nice story but how does it have anything to do with magic and law? When there is
too much information it is almost is difficult to find what you need when there is no information.
To put it another way, as hard as it is to find a needle in a haystack it's even harder to find the
specific needle in a needle stack. In the magic world the needles are exposure videos that are
unauthorized by the magic publishers. YouTube and videographer Robert Anderson had an idea
that applies this to magic. What if we flooded YouTube with fake magic videos? Videos that
explain bogus methods using crazy apparatus and pseudoscience. If we overwhelm to the market
with fake YouTube reveals, then at least the casual observer will have a harder time finding
actual unauthorized exposure videos. Theory11, the publishing company that I mentioned earlier,
will often hold contests to see who can make the best exposure video giving incentive to create
as many of these videos as possible (Lax, Theory11.com).
It is difficult to say what effect is this tactic has had but the reasoning seems sound. So,
while magic creators who sell their effects have little control over the protection of these magic
tricks, there are things that they can do to make their secrets a little bit harder to obtain. Whether
it's publishing in a less popular medium, using the price to keep it exclusive, or retroactively
trying to distract those who try to find out, through illegitimate means, their secrets there are
many possible tools available. This is all great for the creators who sell their magic, but what
about the performers who have no wish to sell the magic. In recent years the law has been on
their side.
There are two major lawsuits that I'd like to talk about involving performers and the
magic. The performers involved are David Copperfield, and Teller, the silent half of the magic
duo Penn and Teller.
While these lawsuits give performing magicians hope it is important to understand that
this is the best case scenario and there are many examples where magicians were less successful
at court (Goldin v. R.J. Reynolds Tobacco Co., Rice v. Fox Broadcasting Co.).
David Copperfield created a beautiful illusion, he called it “Flying”. It was an innovative
levitation technique what used a complicated apparatus. John Gaughan, his illusion designer,
designed patented this device(Gaughan). Garnering Mr. Copperfield with an added piece of
protection against thieves. Copperfield was notified of a French magician who had built in
apparatus similar to his and was now performing the illusion. Copperfield sued and partially
because of the patent he was successful. Maybe we have progressed since the days of P.T. Selbit,
then again his secret is still out there and you can find it with the patent information in this
bibliography. (Lax, The Tricky Business of Innovation)
In the case of Teller, his magic trick involved shadows and a rose. At the front of the
stage would be a rose in a vase, light was shone on it creating shadow of a rose projected onto a
large screen. Teller, with a large knife, slowly and methodically begins to cut off the petals and
leaves of the rose, he comes near the real rose of course he only ever touches the shadow. This is
a beautiful illusion it is a signature piece of Teller and nobody else in the world knows the secret
or performs it. That is until Teller heard of a man from Belgium who decided to sell a version of
the trick without his authorization(Jones).
Immediately teller filed the lawsuit. The copycat fled for some time which caused the
Teller to hire a private eye to track him down 3 years of work and energy the trial was held and
Teller won. the reason that he received his reward was not because the copycat ripped off his
method like the copycat with David Copperfield, but rather Teller’s copycat ripped off his
presentation(Jones).
Under copyright law magic tricks technically can't be copyrighted but choreography and
pantomime can (Crasson). Teller has made it a habit, for most of his professional life, to write up
his magic presentation like a play. He went through the same process to file these plays with the
government as a Broadway producer would. Remember how musicals work? You have to
receive performance rights and royalties. Because Teller had filed his performances as plays and
the copycat never received performance rights Teller won the lawsuit. Because the copycat was
selling at least in the audience is eyes a copy of Tellers play the method was irrelevant. Judge
Mahan who presided over the case had this to say “Whether Dogge uses Teller's method, a
technique known only by various holy men of the Himalayas, or even real magic is irrelevant, as
the performances appear identical to an ordinary observer” (Jones)
Magicians were ecstatic about the teller judgement. it was groundbreaking in a more than
one way (Jones). It suggests that perhaps there are other ways that we can protect our creations,
we just need to be careful and educate ourselves about our rights. While it is difficult and never
sure fire there are ways for magicians to protect their magic.
Besides, if the secret was that important magic would have been done a long time ago. Magic
without a performer is less than a puzzle. Take the performer away and you have very little that's
worth protecting anyways.