Attorney and founder of internet rights law firm GigaLaw Doug Isenberg gave a talk at MagiFest 2018 today about how the current state of intellectual property law applies to a magician and how they can protect their illusions. The short answer? Magic tricks themselves are not protected by copyright, but there are still ways to protect your work.
Isenberg began his presentation by showing how the internet makes it easier than ever for magicians to have their work stolen, like how Joshua Jay's Magic: The Complete Course can be illegally downloaded for free on document hosting services like Scribd.
Then there are cases on YouTube, where individuals take tricks other illusionists have created perform them on their own channels. One of the most famous cases was between Teller and Gerard Dogge. "Teller probably takes copyright law more seriously than anyone," Isenberg explained, and discussed how, when the latter uploaded a video showing his version of Teller's Shadows trick, Teller sued for copyright infringement.
Teller copyrighted the trick back in the 1980s, Isenberg said, but now it was up to the courts to decide whether the copyright actually held any weight.
According to Isenberg, Copyright protects against three main things: original works of authorship, infringement (copying or derivative works), or substantial similarity. In this case, while the judge in Teller's case said "magic tricks are not copyrightable", performances of that trick and aspects of that performance—such as pantomime—are. And while there was some difference between Dogge's version of Shadows and Teller's original work (such as the kinds of props used), the performances were "virtually indistinguishable" and as such, Dogge was found guilty of infringement.
This all comes back to the "idea-expression dichotomy", according to Isenberg. It's an aspect of copyright law created back in the late 1800s that states that copyright doesn't protect ideas (which anyone can have) but rather expressions of that idea.
Teller's victory, however, came at a price: while Teller was able to recoup about $500,000 in damages and legal fees, he still ended up losing around $400,000 due to the cost of taking the case to court. A Pyrrhic victory, but one that helped set precedent to help prevent future imitators.
There are other ways to protect one's work, whether through non-disclosure agreements, patents, or trademarks, but they're either impractical, time-consuming to attain, or expensive. Copyright seems like the easiest and best option for protection, and while not perfect, will help you in the long run.
So what can you do to make sure infringement doesn't happen to you or your colleagues? Isenberg closed with the three R's: register your copyright by filling out a form online and paying a nominal $35 fee, report violations that you see (sites like YouTube have simple automated forms you can fill out to make a Digital Millennium Copyright Act claim), and respect other magicians' work.
Stay tuned to GeniiOnline for more reports from the heart of Magi-Fest 2018.