Six things every magician should know about US copyright law

May 3, 2018

No one likes seeing their work stolen, and thanks to the open, often Wild West-like nature of the internet, copyright infringement seems easier than ever. Places like YouTube make it so easy to upload content that just when you think you’ve beaten back one copyright claim, five others can take its place. So what is a working magician to do in the face of a near-constant stream of illegally uploaded videos, trick theft, or even straight-up piracy?

In order to figure this out, GeniiOnline spoke with US copyright lawyer (and once amateur magician) Doug Isenberg. He is the founder of GigaLaw, a law office dedicated to protecting intellectual property in the digital age, and while he’s no longer a practicing magician (“My son is the real magician,” he mentioned in our interview—referring me to 16-year-old Ari Isenberg), his interest and expertise has afforded him the opportunity to give a presentation on copyright law at Magi-Fest 2018. We got into the nitty-gritty of what United States copyright can help protect, what it can’t, and what you can do to protect yourself should you find your own work being infringed upon.

Copyright law doesn’t protect ideas, but rather expressions of that idea

“Copyright law exists for what are called ‘original works of authorship’”, Isenberg says. These works include books, movies, music, plays, paintings, and many other forms of expression. What it doesn’t cover, according to United States courts, are magic tricks, at least when it comes to the trick itself.

Teller v. Dogge is perhaps the most important court case for setting precedent for clearing up how magic tricks are protected by copyright—and how they aren’t. Belgian performer Gerard Dogge posted a series of videos on YouTube back in 2012 where he performed a variation of Teller’s famous Shadows routine, in which an illusionist plucks at a shadow of a rose with a pair of cutters, only for the audience to see the bits of the actual rose fall to the ground. He also explained that he would reveal the secret behind this routine to anyone willing to pay for it.

Teller, who had performed this routine for decades and even obtained a copyright registration for the trick back in the 1980s, had the videos pulled from YouTube and took Dogge to court for infringement. Teller won his case, but the reasons why were particularly illuminating, specifically because the judge presiding over it stated definitively that “magic tricks are not copyrightable.”

The important distinction here is the difference between an idea and an expression of that idea according to the law. Isenberg explains: “For example, the idea of making a woman levitate, or the idea of tearing up and restoring a newspaper or a card, or certainly the idea of finding a card that’s been lost in the deck, [these] ideas cannot be protected by copyright law. But the specific expression of those ideas, which might be a performance, or might be the instructional video to download, or might be a book, those expressions of those ideas are what copyright law can protect.”

So while Teller ultimately won his court case, it wasn’t because Dogge infringed on the trick itself (the idea of snipping branches off a shadow and making them fall off the real thing), but rather that he was infringing on Teller’s specific performance of that trick. It’s the difference between sawing yourself in half and breaking out a cartoonishly-oversized buzzsaw that looks an awful lot like the one David Copperfield used and performing his routine verbatim; that is, with the same movements, music, and patter.

It’s hard to talk about hypothetical situations, because each case is determined by the specific facts presented

The reason why Teller’s case against Dogge is so important is that it is one of the few cases to actually make a statement about whether magic tricks are protected by copyright.

“There are so few cases involving copyright law and magic, so those that do exist are very interesting,” says Isenberg. “It’s not a very well-developed area of the law even though neither magic nor copyright law is anything new…But I found it especially interesting because it was so clear what the court said: literally, ‘magic tricks are not copyrightable.’ It’s one of the few cases with actual guidance in this area of the law.”

Even with this guidance, it’s still hard to tell whether you might have a potentially worthwhile copyright claim to take to the courts because so much is inherently based on facts specific to each individual case, and there simply haven’t been sufficient magic-based claims to create much precedent.

“It’s easy to talk about the Teller Shadows case or some of the other cases that I talk about,” Isenberg explains. “It’s a lot more difficult to talk about [a hypothetical court case] in the abstract because it depends on what the actual original work is and what the allegedly infringing work is. Copyright law, like a lot of the law—especially intellectual property law, which includes copyright and trademarks—can be very difficult to grasp. It’s not very clear how to apply copyright law to every situation without knowing what the specific facts of that situation are.”

Someone also needs “access” to the original work to be considered in violation of copyright

It’s not enough for someone to copy a performance of your original work. In order to be considered infringing, the plaintiff must prove that the offending individual had “access” to the original work, and used that access to copy it.

“If somebody creates something,” Isenberg explains, “whether it’s a deck or a book or a sculpture or a song, if that person did not have access to the copyrighted work, then there can be no infringement, at least under U.S. law.”

In the case of Teller v. Dogge, access was proven through the YouTube videos Dogge posted, which included statements claiming that he had seen Teller’s routine multiple times, and therefore knew how to perform the routine in question. From there, Teller’s lawyers were able to prove that the two routines were “substantially similar.”

It’s not always this clear-cut, though. Sometimes, an individual can inadvertently create something similar without any prior knowledge of the work in question. Earlier this year, Ellusionist pulled a deck of cards from their store mere days after publication because another magician claimed that the idea originally belonged to him. In this case, Ellusionist did their work to attempt to source the idea they’d come up with, couldn’t find one, and went ahead with publication, only to realize that someone else had been using that idea in private shows for years. The magic retailer pulled the cards out of respect for the original creator, but there’s a good chance they could have defended themselves in court successfully because they had “independently created” the deck.

“You have to look to the facts of the case,” Isenberg says, “but if there’s some original trick or deck of cards that somebody has created and kept to themselves and they have not published it online or published it in a book or performed it at a convention…and someone else independently comes up with the same trick then most likely, the court might say there has been no access and therefore there’s no possibility of copyright infringement.”

Fighting copyright claims is very expensive, often providing little return for your trouble

Settling the issue outside of the legal system was certainly the honorable thing for Ellusionist to do, but there’s another reason why they might have chosen that route: court cases are expensive.

At Isenberg’s Magi-Fest 2018 presentation on the subject of copyright, he mentioned that while Teller won an award of more than $500,000 in damages and legal fees, he actually asked the court to award him closer to $1 million to cover the necessary costs for protecting his copyright.

“One interesting point in the Teller case,” Isenberg says, “is that YouTube had long ago taken down the videos that Teller was suing over. He could have chosen not to pursue this litigation and say ‘Well, I’ve already won because I’ve filed this notice with YouTube and they’ve taken down the videos.’ But he obviously wanted something much more than that, and I have to assume that what he wanted was the court’s opinion—because as the decision makes clear, he probably spent a lot of money to get where he was.”

There are steps you can take to protect yourself that are cheap (or even free!)

Of course, not everyone has the ability to spend the kind of money it would take to get a legal opinion on magical copyright, which is why it’s important to take what steps you can to protect your work. Luckily, you have options.

The Digital Millennium Copyright Act (or DMCA, for short) has allowed individuals to make low-cost (or even free) copyright claims when they feel their work is being infringed upon. The U.S. Copyright Office features a breakdown of what a written DMCA claim should include if you’re sending one to a website hosting service, or other site, service, or company that is infringing on your copyright.

Because it’s so easy for people to upload content to services like YouTube or Vimeo, these sites even include handy automatic DMCA forms that you can fill out in a few minutes and see results almost instantly. While these automatic forms have potential for abuse, proper use can allow individuals to keep their work safe without prohibitive legal fees.

“I represent a very successful artist and oil painter and we through the years have filed quite a few DMCA takedown notices and complaints with eBay and it has had quite an effect,” says Isenberg. “Not only do we get those specific items taken down, but you send a message to the larger community that we take copyright infringement seriously and we are going to enforce our rights. Plus, it’s just very quick and you can do it yourself. Just make sure you jump through the right hoops.”

Another thing you should absolutely do is to register your work with the United States Copyright Office. While you won’t be able to register a magic trick, you can register a choreographed work, pantomime, stage play, or other dramatic work, book or video. Registration fees are usually around $35, and are worth the price and effort.

“You can get copyright protection without registering,” Isenberg says, “but registering can be a very simple, very helpful, and very inexpensive process that can go a long way when you need to enforce your rights.”

Sometimes, copyright issues arise out of simple misunderstandings. Contacting the individual who is infringing on your work can go a long way to mitigating damages and preventing legal headaches. The issue with Ellusionist was solved through a couple of phone calls and emails—and if the offending party isn’t acting in good faith, well, that’s what the DMCA and the courts are for.

Copyright is not meant to protect your work before it’s stolen

In closing our chat, Doug wanted to clear the air on one final topic: the law isn’t designed to prevent infringement before it happens like a precog from Minority Report.

“I think there’s a lot of confusion in the magic community about what the law is and what the law can do,” Isenberg explains. “Copyright laws are never going to prevent copyright infringement, just like speeding laws will never prevent all speeding on our streets. They’re important laws and we need to know what they are, and we need to respect them, and I just think it’s helpful if magicians have some understanding of copyright law as both copyright owners—whether you’re creating something or writing something or performing—and also as consumers. If you’re purchasing magic, you need to understand what your rights are, too.”

No one wants their content stolen or uploaded without consent, but it’s important to remember that while the law is designed to protect you from infringement and to deter bad actors with clearly defined consequences, there are billions of people on this planet, living in hundreds of countries, each with their own laws and approaches to copyright. It would be impossible to catch everything before it happens.

That said, knowing how copyright can protect you will set you on a path toward keeping your magic safe with as few headaches as possible. And that’s a trick worth knowing.