In almost every aspect of the entertainment industry, there are clearly-defined laws in place to protect intellectual property. You won’t see an up-and-coming musician with a library of YouTube videos performing a previously-recorded song and passing it off as their own on a talk show; it just doesn’t happen. And yet, in the realm of magic, these occurrences are not only embedded into the medium’s history; it’s something big-name, high-profile acts deal with regularly to this day.
In the eyes of the law, it doesn’t matter that successful illusions can take years to create, cost as much as a high-end car, and take a team of engineers to execute, because magic isn’t art, legally speaking. Many magicians don’t create their own illusions, instead purchasing them, often with exclusivity deals attached. Despite the clear monetary value, United States copyright laws state that you can’t copyright an idea, just the specific performance of that idea. Where does the idea end and performance begin? That’s where things get muddy.
Even David Copperfield, perhaps the most successful illusionist of all time, can’t stop amateur magicians from copying his tricks. Speaking with GeniiOnline about his own fight to protect his magic, he said, “I used to fly in my show and there was a guy in France who copied it. The background, the costume, the music, everything.” Other times, he’s seen people performing tricks he engineered on TV, only to be told by network execs that “everybody does that stuff.”
Though modern technology makes it easy to upload and share tricks with the world, this certainly isn’t a new problem; magicians have been stealing each other’s tricks for centuries. Copperfield, who owns a Vegas museum that houses the world’s largest collection of magic memorabilia, is well-versed in its history, and cited several examples of old-school thievery. Early 20th-century magician Horace Goldin spent years protecting the concept for which he was most famous—sawing a woman in half—but even the origins of that illusion have been questioned. Going back to the 1800s, Jean-Eugène Robert-Houdin saw many of his creations, including ethereal levitation, stolen and sold off to competitors.
“At the time in Europe, you had to travel to the city” to see a magic act, Copperfield pointed out. In the days before Wi-Fi, high-def smartphone cameras, and YouTube, it took a significant amount of effort just to see another performer’s show, let alone reverse engineer it. It still happened, as history can attest, but it wasn’t as simple as rewatching a clip over and over while Googling tutorials. “Here with the internet, it’s instant. You can screengrab videos you see on TV and measure the prop and rebuild it and watch the performance and see what the music is and literally copy and lift it.”
Part of the problem with trying to protect tricks, he says, is deciding whether or not it’s worth the effort to even fight. Copperfield isn’t one to let others steal his hard work, but it’s not a straightforward battle. “I sued him in France and won, and he had to pay me every single time he did it,” he said of the knockoff flyer. In America, that’s still an option, but fighting takes a significant investment of time and money—time and money that should be spent coming up with new illusions, not protecting old ones. If magic were legally declared an art form, protecting one’s illusions would be less of a headache.
It’s not just about calling something “art” for the sake of it; it’s what that status represents. Legally, it would come with the kind of protections granted to most other forms of entertainment, which gives artists a clear path forward in cases of theft and more easily penalizes perpetrators. And there’s no doubt that Copperfield is an entertainer; he’s got dozens of Emmy nominations, 11 Guinness World Records, and even a star on the Hollywood Walk of Fame. He’s also by far the highest-earning magician in the world, having made over $61 million in 2017 alone (double what second-place act Penn & Teller netted). If it’s a struggle for someone of his fame and resources to protect his act, what hope does an up-and-coming illusionist have?
As if the awards and titles aren’t enough, Copperfield’s name is now attached to a different kind of title: Resolution 642, which aims to “recognize magic as a rare and valuable art form and national treasure.” Introduced in 2016 and sponsored by Representative Pete Sessions of Texas, Resolution 642 cites Copperfield alongside Harry Houdini as one of the most successful magicians of the last 200 years, and states that he “has impacted every aspect of the global entertainment industry” and “through his magic, inspires great positive change in the lives of Americans.” On top of legally declaring magic an art form, H.Res 642 “supports efforts to make certain that magic is preserved, understood, and promulgated”—in other words, protected from would-be illusionists looking to cash in on someone else’s efforts.
“Eventually we’ll get this bill passed in Congress… the congressmen and congresswomen are working with me on this, to help legitimize and protect [magic] from a legal standpoint so that we’ll have the designation of a true art form, like jazz and music, which have more clear protections,” Copperfield said. At the moment, the resolution appears to be on hold, awaiting a less tumultuous political climate; as he puts it, “I think it’s best to wait till the time is right and then go in there when people are more relaxed and less stressed.”
He knows that H.Res 642 won’t be an instant solution, but he thinks it will go a long way towards protecting himself and other magicians. “It’s not just about the money, it’s about time and work… [the audience] doesn’t know the amount of trial and error it takes.”
In the meantime, Copperfield is always working on new material, trying to look forward rather than back. “Years ago it bothered me a lot more… I spent seven years working on one illusion and people are copying it. So I focused on this resort I have in the Bahamas, I focused my energy on that, rather than creating new magic… for a while it really changed my path.” In moving forward, Copperfield has focused on illusions with “a complexity that’s hard to duplicate,” using ideas like aliens, dinosaurs, and time travel, things that you won’t find in any classic magic book. “For me, the only solution I have is to kind of outrun myself and try to get over the frustration, to keep moving forward and going to new areas.” Currently, that means performing several nights a week in Las Vegas to rave reviews, showing the world that, law or no law, magic thieves can’t keep him down.