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 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.
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.”
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.”
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.”
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.
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.
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.
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.
An explicit gaffed deck meant to insult hecklers was pulled suddenly from Ellusionist’s website after the retailer received information regarding “potential independent creation concerns”, according to an open letter sent out via Facebook and email by marketing head Geraint Clarke.
The deck, which was released on January 23, 2018 and pulled a day later, was developed by creative team member Lloyd Barnes based on a story Daniel Madison told him about a magician who pulled a naughty card from a deck to get back at a heckler and then top-changed it back to a regular card. According to the letter, Barnes had attempted to source a proper credit for the trick, but wasn’t able to, and Ellusionist went ahead with production.
Shortly after its release, information came to Ellusionist’s attention that the trick had been a regular part of illusionist Harrison Greenbaum’s private routine for “around a decade”. Greenbaum got in touch with CEO Brad Christian, sent over videos proving that he had invented the trick before Ellusionist’s decision to produce it.
While Ellusionist may have been able to defend any potential copyright claims in court due to independent creation (a copyright clause that allows two products of similar design to exist as long as both products were created independently of each other), the decision was made to pull the trick from the store as Clarke states that “Ellusionist as a company isn’t in the business of copying effects from creators and is always happy to rectify any of these issues if they arise”.
The trick has since been barred from future sale (the link for the trick redirects to a 404 error on Ellusionist.com), though according to a post on The Magic Cafe Forums, it’s possible a few decks may have shipped before being pulled.
The full Facebook post has been embedded below: