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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."
You'll need it. Or, as Teller might say, " ."
Bakardy: Hello? Teller: . Bakardy: Heelloo? Teller: . Bakardy: Goodbye. Teller: !
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.
http://blindscribblings.com - Tasty pop-culture in conceptual fashion.
GOB: Illusion, Michael. A trick is something a whore does for money. [GOB notices children in earshot] ... Or candy!
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...
If telephones are outlawed, then only outlaws will have telephones.
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.
Hilary Rosen's speech was about her love of money and her desire to roll around naked in a pile of money.
There's plenty of footage of Teller talking, giving interviews, etc.
Comic Sans?
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.
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.
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.
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.
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..."