Magician Suing For Copyright Over Magic Trick

Fluffeh writes "Teller, the silent half of the well-known magic duo Penn and Teller, has sued a rival magician for copying one of his most famous illusions. The case promises to test the boundaries of copyright law as it applies to magic tricks. A Dutch magician with the stage name Gerard Bakardy (real name: Gerard Dogge) saw Teller perform the trick in Las Vegas and developed his own version — then started selling a kit — including a fake rose, instructions, and a DVD — for about $3,000. Teller had Bakardy's video removed with a DMCA takedown notice, then called Bakardy to demand that the magician stop using his routine. Teller offered to buy Bakardy out, but they were unable to agree on a price. So Teller sued Bakardy last week in a Nevada federal court."

Comments

Vegas huh?

[GodfatherofSoul]

I'm sure Penn and Teller know "a guy" who can make this deadbeat...[poof!]...disappear into a hole in the desert.

Re:Vegas huh?

[Anonymous Coward]

There's plenty of footage of Teller talking, giving interviews, etc.

Re:Vegas huh?

[Anonymous Coward]

Not really a first, Teller doesn't speak on stage, but he does speak. There's a few candid videos floating around. And yes, from TFA, he registered copyright on the trick in 1983

Re:Vegas huh?

[DC2088]

So then why should performers and content generators even register copyrights for things at all if pursuing the legal action that is associated with violating that copyright is going to "devalue their reputation"? I don't think one iota less of Mr. Teller for pursuing legal action for the violation of copyright. I wouldn't think less of him for not pursuing it either, but he is. It is his prerogative by the law and not remotely harmful to his "reputation" in any way that is not superficial. If he were patent trolling that would be one thing, but this is another thing - a legitimate application of copyright law - altogether. So, yknow. Relax.

Re:Vegas huh?

[geekoid]

It would only be a douche move if he went strait to lawyers. He has tried being polite. So now he is using the last recourse, the courts.

That said, I have to agree with the article in that it will depends on how close it resembles tellers performance of the trick.

If it is simple a guy making a rose fall apart while cutting a shadow, then teller will probably loose. If the performance of the trick is the same, teller may win.

Re:Vegas huh?

[LateArthurDent]

a legitimate application of copyright law

Screw that. I don't see how a magic trick can be copyrightable. The performance of it is copyrightable, but Bakardy isn't selling a recorded version of Teller's show. He watched the show, figured out how Teller did the trick, and is telling other people how he does it for a price. The equivalent analogy is if I go see a movie where a character gets his hand chopped off, figure out based on my own experience how the special effects guy made the hand-chopping look so realistic, and sell the information of how to do that to people, who will then proceed to make other movies where characters get their hands chopped off using the same technique. That's perfectly valid. The movie scene is copyrightable, the method used to film the scene is not.

There's more to a magic show than the trick. Presentation is everything. If the trick is so well know you can no longer present it in an entertaining way, tough luck, create a new trick. So yeah, Teller lost my respect.

Re:Vegas huh?

[Anonymous Coward]

There are several problems here: the law claimed by Teller is a grey area of copyright laws, and he is not just pursuing legal action, he is using DMCA to prevent the sale of a product before getting a judgement. Both of which are quite hypocritical of Teller in the light of Pen & Teller's reputation. To wit:

1. Is there copyright infringement at all, and is the copyright even valid? It would be a clear copyright infringement if Bakardy uses the same music, same gestures, and same sequence of events as Teller, or if Bakardy uses footage from Teller's performance in his video, otherwise it becomes debatable as to whether one can copyright the spirit of an act, or an idea, or an invention.

2. Bakardy's product is not damaging in any way Pen & Teller's ability to continue their act or make a revenue from it. If Teller had already created a similar instructional product, he may have a tiny bit of a claim, but he hasn't and even so, can the first person to write a textbook on a new scientific theory, or a tutorial on a new programming language, claim copyright on all textbooks/tutorials written on the subject?

3. Pen & Teller use many tricks in their performance, some of which are classic tricks invented by previous magicians. In one famous act, they actually perform a classic trick with transparent boxes. It's basically a tutorial of a magic trick that was not invented by them (and yes they make money from that tutorial by virtue of charging a fee for the performance). Seems hypocritical that now Teller doesn't want someone else to make money from a tutorial of one of his tricks.

4. Pen & Teller have made a reputation of calling out magicians, politicians, and law-makers who use too much smoke and mirrors (no pun intended) to further their own agenda, yet here's Teller using a grey area of copyright law trying to prevent someone else from marketing a new product. Furthermore, Teller is going the over-the-top DMCA route by forcing removal of the product first, before getting a proper judgement. If Pen & Teller care as much about sensible laws as they say, Teller should have simply served Bakardy a notice such as "I believe you're infringing on my copyright, please stop marketing your product or I will file a lawsuit and you will then be responsible for X dollars in damages for every day you continue to market said product, your choice..."

Re:Vegas huh?

[Anonymous Coward]

From the Copyright Act of 1976:

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

Emphasis added. He does not claim copyright over the trick itself, he claims copyright over his performance of it. That performance is absolutely protected by copyright, which he registered. The problem he faces though, is that when registering his copyright, he obviously did not want to give away the secret of the trick, so his description is as brief and nondescript as possible. As such, even small variations in the performance may be sufficient to be considered non infringing.

Re:Vegas huh?

[Fned]

Yes, he wrote down the entire performance.

Re:Vegas huh?

[amRadioHed]

You missed an important part:

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: ...

The choreography itself can't be protected, only a particular performance of it that has been recorded on some medium.

Re:Vegas huh?

[Mark J Tilford]

http://www.youtube.com/watch?v=TgtgOs_OkTU

Re:Vegas huh?

[im_thatoneguy]

You missed the really important part where you didn't go to law school. Neither did I, but in this case I still actually understand the law. You completely misread your own quote (and the law). The important bit "fixed in any tangible medium of expression" and you highlighted it. But what that means is that it is a form of art that is * recordable*. It also means you have to record it in some fashion to be copyrighted.

If I write a song I own the copyright on that *TUNE* I don't only own a copyright on the performance. But once it's performed or recorded then I own the copyright to that tune. This is important so that you can't say "oh the Beatles stole my song idea." without a recording of it somewhere. And now a recording doesn't have to be a literal audio recording it can also be a metaphoric recording such as sheet music or some form of notation.

So if there was "magical notation" then you could say that the choreography of the trick was copyrighted without even performing it. But in the case of Penn and Teller the fact that he's performed it is also an example of your creative work being recorded.

I don't know if he'll win his lawsuit but if a dance is copyright-able then a magic trick I would think should be as well. Just not the idea behind a magic trick.

Good luck.

[Anonymous Coward]

You'll need it. Or, as Teller might say, " ."

What bullshit

[ryanvm]

I'd like to see them cover copyright law on their show...

Probably an interesting phone call...

[jdbuz]

Bakardy: Hello? Teller: . Bakardy: Heelloo? Teller: . Bakardy: Goodbye. Teller: !

Teller a copyright thug?!

[Thud457]

So... Teller's bite is worse than his bark?

Seen this trick before

[mseeger]

Just some bogus claim, lawyer behind a smoke screen and some copyright waving in a trick to confuse a judge..... Larry Ellison does this routine a hundred times the size before breakfast ;-).

Re:Seen this trick before

[deciduousness]

GOB: Illusion, Michael. A trick is something a whore does for money. [GOB notices children in earshot] ... Or candy!

As much as I like Penn and Teller

[RightSaidFred99]

This is insane. By all means call the guy a hack, tell everyone he stole your trick, but in the end he's not reproducing your image or any literal representation of something you did. He reverse engineered the trick. What if he changes the rose to a posie? Or makes some other minor change? At what point does the "concept" of your trick become something that's unique and that you "own"?

Re:As much as I like Penn and Teller

[Anonymous Coward]

If he's doing the exact same performance, what's the difference between plaigarizing Tellers act, or Lady Gaga's, or performing any other copyrighted dramatic work? If I went out and performed Louis CKs routine, word for word, I'd expect to have the hammer dropped.

I haven't seen this guys video. If he's selling a video of him doing the exact same routine, same setup, same moves, same 'punchline', but claiming it as his own - fuck him.

I don't see anything about Teller claiming he owns sleight of hand, smoke and mirrors, etc.

P&T tend to be on the 'intelligent' side of most issues. They tend to like to exploit bullshitters, and scam artists - like a guy selling a 3000 video explaining one of their tricks, and pretending to have created it.

I'll wait and see how this plays out.

Re:As much as I like Penn and Teller

[Halo1]

A theatre play also falls under copyright, regardless of whether it involves spoken words or not. Changing minor details does not change that, just like changing the names in the Harry Potter stories would not be sufficient.

There is no exact definition of when something stops being a derivative work and becomes a new/independent work. The reason is, as you sort of touched upon, that it is simply not really possible to write a strict definition for something like that. As a result, either both authors come to an agreement, or a judge decides after their and expert witness testimony.

Slashdot user suing geek.net for spelling mistakes

[Compaqt]

A Slashdot user, known for his misspelings in his bad analogies, car analogies, and Soviet-era Russia jokes has sued Slashdot's owner, geek.net.

The user alleges that the editors saw him use these corny techniques for replying to Slashvertisements, and they copied the technique for use in their own story summaries.

Geeknet offered to buy him out, but negotiations came to a standstill when the user also demanded that the company buy his "in Korea, only old people read email" technique. The 23-year old negotiating for Geeknet had responded, "What's email?"

Re:Very sad

[Enderandrew]

Penn has spoken in defense of Teller on this. And apparently the copyright claim was made in 1983. I assume they've copyrighted a few of their tricks as performances this way, and have for years.

Teller knows you can't copyright an idea. He has copyrighted the performance itself, and you can copyright a specific pantomime routine. His claim is that by performing the exact same steps, you are infringing on a copyrighted pantomime routine.

There is legal precedent for that, but I can see this going either way.

Re:Very sad

[tmosley]

There are a wide spectrum of libertarians in the world. Some do believe in IP. I don't myself.

IMO if you can't keep it a trade secret, that is your tough luck. You can't rest on your laurels in this world.

Tesla's machine is at work...

[tekrat]

What you don't know is that Bakardy hired Tesla to create a machine which performs the trick. And, every night after the performance, workers have to remove large boxes full of drowned flowers, secretly out through the stage door and into a warehouse...

Actually important case

[Xunker]

So, yeah, it's easy for us to point and laugh at this and say it's just a useless farce.. but this effects us all actually.

The brief filed states that Teller is suing because the rival's trick supposedly violates a 1983 Copyright he filed for the trick. What is important here is that the Copyright filing DOES NOT describe how the trick functions, but instead HOW IT LOOKS. On those ground, Teller is suing.

I believe this is important. Why? Because I think it is similar to SOFTWARE PATENTS.

Of course, obviously PATENT != COPYRIGHT, but the similarities in this case are still apparent. Unlike every other kind of working patent, software patents generally describe the outcome/result of something instead of the actual mechanism (patents of physical things are based on the WAY it works, not what it produces, SW patents are generally based i the end product).

If suit is upheld it means software patents *could* have an extra life, and indeed if a vendor wants to squeeze out competition they could simply file for a COPYRIGHT on the visible result of the software too.

IANAL, but food for thought.

Re:If he manages - you know what the next stage is

[paazin]

God, I wish there was a sarcasm font.

Comic Sans?

Re:Bullshit.

[SQLGuru]

Copyright vs patent. The claim is copyright infringement and not a patent issue.

If the copy-cat magician had used a daisy instead of a rose or had done it with scissors instead of a knife......probably wouldn't have had a case.

Re:Bullshit.

[Half-pint HAL]

The problem as I see it is that he's explicitly using the Penn & Teller brand in his marketing efforts. That YouTube video is an ad. He is selling stuff off the back of Penn and Teller. So maybe he should really be going after them for abuse of trademark, and get a forward injunction on future sales based on the argument that the initial breach of trademark law is directly responsible for the level of publicity received and the future sales potential of the trick.

Seems to Be a Performance Copyright

[eldavojohn]

Not sure but I think this is not a filing over how it's done but rather a filing over whether or not the performance is a copy of or derivative of Teller's 1983 copyrighted description. I don't know how this trick works but I'm guessing if Bakardy had chosen a different flower, a different cutting device, a different setting, etc and changed it just superficially enough so that the mechanic is still relayed to the viewer he might escape the copyright. But it seems Teller has written this out like a play and it will be up to the courts to decide if Bakardy is infringing on that copyrighted material. You'll notice that this is about copyright and performance, not a patent and methodology.

If this lawsuit is over how it's done, I agree with you. I see it similar to software patents where I see a program that does something -- say manages all ID3 tags of your library through HTML table interactions -- and I want to make something behave the same way. Even though I don't have the source code, I figure it out one way or the other. Maybe it's the same way your patent describes, maybe it isn't. It doesn't matter, I've never seen your source code and I'm not infringing on the graphics and layout so why should you be able to sue me when I write something that does (perceptually) the same thing? People who are smart enough to figure out their own solutions shouldn't be prohibited from employing that intelligence ...

Re:Very sad

[Enderandrew]

Why would a dance performance be covered under patents when all other artistic performances are covered by copyright?

Re:Wasn't FOX sued over magic secrets revealed

[mark-t]

The claim against FOX was with respect to violation of the magician's code of honor to not reveal how their tricks are done.

This code enjoys no legal protection, however, and the lawsuit against FOX for that show failed.

Nonetheless, magicians could actually enjoy some legal protection for their tricks under trade secret status.

However, trade secrets do not enjoy any protection at all against being reverse engineered by somebody who did not know the secret.

The only allegation that would have had even the slightest chance of succeeding was to show that the masked magician in FOX's show had misappropriated trade secrets he did not own for broadcast.

check what he's suing over

[l2718]

Teller is NOT suing over the technical aspects of the trick (how the rose petals are actually made to fall). They are not copyrightable, and indeed are not described in his copyright registration. Rather, he is suing over the dramatic presentation; essentially he is claiming coypright in a short (2-minute) theatrical performance.

I don't think Teler would have protested his competitor adopting the trick itself (magician interacts with shadow on screen but affecting the physical object casintg the shadow) -- he'd have expected credit ("This trick was invented by Teller") but wouldn't have claimed legal ownership. But Teller should be able own the theatre he creates.

Re:I think less of him

[XxtraLarGe]

Mr. Teller i hope you lose.

It wouldn't surprise me if Teller hopes he loses too. Penn & Teller strike me as just the type of guys who would sue someone in hopes of losing in order to set a precedent against a bad law. Would that make them anti-copyright trolls?