Legal


Protecting The Art of Illusion


as one category of works which is copyright protected. It further reckons a potential list of such literary and artistic works. Over the years through the continued development of copyright laws, claims for protection from new categories/groups of people have emerged. This article will treat the first of three unusual categories – magic.


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Recently there has been a cry out from magicians such as David Copperfield to protect magic as a form of art. According to him, a magician’s work is the creation of new ideas and if those ideas are stolen that person should be able to claim protection from the law. Magicians want magic to be legally recognised on the statute book. The crux of the problem is this – magic is about dark arts and mystery. Whereas codifying something in law tends to mean setting it down in black and white, for anyone and everyone to pore over should they so desire.i


This


goes to the root of the whole system of copyright laws – only expression of an idea is protected as opposed to the idea itself.


Magic which is scripted with all the provisions of originality and fixation is protected as a literary work. Scholars and practitioners have also theorised that magic is protectable under the categories of pantomime and/or choreography. In the Netherlands for instance a court ruled that tricks and illusions are not protectable per se and fall into the grey area of law, but when


52 ABU News


rticle 2 of the Berne Convention enumerates “literary and artistic works”


put together into a specific sequence, as part of a magician’s routine, they effectively constitute a kind of drama, and can therefore be granted copyright protection. Nonetheless the bottom line is that magic is not an enumerated category under the Berne Convention. “Magic is distinguishable from most copyright-protectable categories because its commercial value lies, at least in part, in the continued secrecy of the trick.” ii


The internet age has accentuated the problems face by many magicians. In the olden days, a magician’s performance would be copied by another performer or copied on a VHS tape. With the use of the binary code 0 &1, the magic of the performance is now shared instantly across the globe by a mouse click. And that is the flip- side to all this, the interconnected world has increased the speed and ease of ripping off ideas and also the copying of expression of ideas. Jeff McBride an accomplished magician had the unfortunate surprise to see one of his performances being copied by a Thai magician on YouTube and it was as described by McBride himself as “The most carbon copy sort of duplication I have ever seen”.


Claims from magicians have been few in court, not through the lack of trying but mostly through the limited possibility of winning any damages. In 2014, world notorious magician Teller brought a case in the US courts against a man appearing in a YouTube video performing Teller’s famous illusion “The Shadow”. Teller filed a lawsuit seeking to enjoin the defendant from performing and revealing his trick. He won.


Nawaz Dookhee, Manager-Regulatory, Legal & IP Services


Many magicians have resorted to various other areas of the laws to protect their trade, although their fight for copyright as the area of predilection remains strong – mainly because it protects the secrecy of their illusion. However as Stone (note ii infra.) described, the magicians’ claim for protection is paradoxical as it prevents innovation in their own field. Patent laws have been used heavily by one magician, Kevin James, known as the “inventor” through his sheer volume of inventions patented. Patent law means full disclosure of the illusion which defeats the idea behind keeping the trick secret. Further patent litigation is very costly and enforcement is cumbersome.


The other area which can be used is the law of trade secret. The rationale is the protection of the tricks similar to world famous recipes like Coca Cola. As some writers have stated the weakness of the law of trade secret is that the onus is on the holder to guard it secret. Magicians are public performers; the principle of secrecy is somehow weakened through their live performances.


Yet another area of law which has been utilised by magicians is passing off (unfair competition). The idea is to prevent a person passing off their work as that of a reputed act. This is somehow addressed in the Magician Code of Ethics by the use of paternal rights.


For the broadcasting sector it is interesting to note that there have been few cases involving magic tricks.


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