Magician Suing For Copyright Over Magic Trick 296
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."
Very sad (Score:2, Interesting)
I assume this must be a strong test on Penn and Teller's partnership, considering just how hardcore of a libertarian Penn Jillette is. Most libertarians don't support overly strong copyright laws, and many of them do not support any copyright laws at all. Using the DMCA would certainly be against any libertarian's agenda of ensuring everyone gets full and fair rights to a trial and that nobody should need to prove themselves innocent.
Re:Very sad (Score:1, Interesting)
just how hardcore of a libertarian Penn Jillette is
Or at least we'll figure out just how hardcore he is, or if he's the kind that he's ok with getting rid of the government as long as it's not making him personally richer.
Actually important case (Score:5, Interesting)
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:Bullshit. (Score:4, Interesting)
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. (Score:4, Interesting)
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.
Re:As much as I like Penn and Teller (Score:5, Interesting)
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.
Re:Vegas huh? (Score:5, Interesting)
Re:Vegas huh? (Score:5, Interesting)
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? (Score:5, Interesting)
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.
Re:I think less of him (Score:4, Interesting)
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?