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Magician Suing For Copyright Over Magic Trick 296

Posted by samzenpus
from the trick-for-treats dept.
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."
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Magician Suing For Copyright Over Magic Trick

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  • Vegas huh? (Score:5, Funny)

    by GodfatherofSoul (174979) on Wednesday April 18, 2012 @02:13PM (#39726283)

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

    • Re: (Score:2, Insightful)

      Using something for 'commercial' gain can and should be prosecuted as Teller is doing.

      However, the feel good, good guy reputations Penn & Teller enjoy, just might take a trip to the deserts of Nevada to the hole you mention.

      Teller can be 'right', or he can be a human being and appeal at that level publicly to show he's human and then use his bully pulpit of fame to shame the guy if no deal is reached. But going to lawyers only shows you're going to be a douche about it.

      The 'value' of his repu
      • Re:Vegas huh? (Score:5, Interesting)

        by DC2088 (2343764) on Wednesday April 18, 2012 @02:44PM (#39726765)
        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? (Score:5, Insightful)

          by LateArthurDent (1403947) on Wednesday April 18, 2012 @03:22PM (#39727329)

          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? (Score:5, Interesting)

          by Anonymous Coward on Wednesday April 18, 2012 @03:33PM (#39727477)

          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..."

          • by retchdog (1319261)

            and penn supports strong patent protection because "he wants [his] friends to be able to get rich."

            totally consistent with this fiasco, and a typical modern libertarian; wealth redistribution for my friends, but not anyone else.

        • by jdavidb (449077)

          So then why should performers and content generators even register copyrights for things at all

          They shouldn't.

          I don't think one iota less of Mr. Teller for pursuing legal action for the violation of copyright.

          I do. Just because an unjust law exists does not mean it is right to take advantage of it and use it as a weapon against people.

      • Re:Vegas huh? (Score:5, Informative)

        by geekoid (135745) <dadinportland AT yahoo DOT com> on Wednesday April 18, 2012 @02:59PM (#39726967) Homepage Journal

        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.

        • He went straight to lawyers when he couldn't reach an agreement directly with the other party. That is 1 step short of going straight to the lawyers and I can quite willingly bet that lawyers were mentioned frequently in those discussions.

          That is *not* what I said. I said, use their bully pulpit of Fame to destroy the man with Penn & Teller's amazing comedic and sarcasm talents. Get the public to understand the issue so that when you do 'lawyer up' people don't attribute it to you negatively.
      • by sirlark (1676276)
        Actually, magicians tricks are more on the patent side than the copyright side. They are processes. I suppose it could be argued that they are scripted, and more similar to a play, but then they should probably be more forthright about the deception involved, that is to say the performance is not the entire script so only the performace would be copyrightable, being the exact wording and action. More than anything, magic tricks fall under the "trade secrets" category. They can be branded, trademarked, and p
        • by rjstanford (69735)

          The trick itself could be patented (but generally isn't).

          In this particular case however, the stage performance (blocking, expressions, actions) was quite thoroughly documented and registered for copyright by Teller as a pantomime in 1983. Note that no details as to how the trick was accomplished were documented, just the performance. That makes it fairly cut and dry - if its an explalnation of how to do the trick, the suit is meritless. If its details as to how to perform the act, that's a blatant copyr

  • Good luck. (Score:5, Funny)

    by Anonymous Coward on Wednesday April 18, 2012 @02:14PM (#39726299)

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

  • by seanmcelroy (207852) on Wednesday April 18, 2012 @02:15PM (#39726315) Homepage Journal

    Reminds me of a similar usage of the DMCA and copyright claim for performance art. Remember the Electric Slide [cnet.com] fiasco?

  • If he manages - you know what the next stage is. Patent trolls patenting tricks that someone might think of a way to do - so when they proudly show some illusion that has taken a year to perfect someone will say "I have a patent on making large objects appear to come out of Uranus" and demand most of the profit.
    • Re: (Score:3, Insightful)

      by mark-t (151149)
      To patent it, you must publish it. A magician does not reveal his secrets.
      • To patent it, you must publish it. A magician does not reveal his secrets.

        Modern patents don't tend to publish much in the way of specific information on how something works, they're pretty vague (which is why a patent holder can sue anyone with something that looks even vaguely similar). Actually fully implementing something described in a modern technology patent using just the published information is pretty much impossible these days.

    • by Anonymous Coward

      You certainly could patent a trick, but not the idea of a trick, it has to be an actual, specific, working implementation of a trick. If you have a working implementation of a good magic trick, you'd be much better off performing it or selling it to someone who will than you would be patenting it. Magicians aren't that desperate for tricks, and your patent registration would more likely inspire someone to think of a different way to implement the same trick than encourage someone to license it from you (a

  • What bullshit (Score:5, Insightful)

    by ryanvm (247662) on Wednesday April 18, 2012 @02:15PM (#39726321)

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

  • by jdbuz (962721) on Wednesday April 18, 2012 @02:17PM (#39726347)
    Bakardy: Hello? Teller: . Bakardy: Heelloo? Teller: . Bakardy: Goodbye. Teller: !
  • by Thud457 (234763) on Wednesday April 18, 2012 @02:18PM (#39726369) Homepage Journal
    So... Teller's bite is worse than his bark?
  • Very sad (Score:2, Interesting)

    by Anonymous Coward

    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:5, Informative)

      by Enderandrew (866215) <enderandrew AT gmail DOT com> on Wednesday April 18, 2012 @02:22PM (#39726453) Homepage Journal

      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.

      • by StikyPad (445176)

        Dance and pantomime arguably shouldn't be copyrightable either. If anything, this would fall under patent law since it's an invention, but of course they don't want to file patents and disclose how it works, which makes it a trade secret and subject to reverse engineering.

        • Re:Very sad (Score:5, Insightful)

          by Enderandrew (866215) <enderandrew AT gmail DOT com> on Wednesday April 18, 2012 @02:43PM (#39726741) Homepage Journal

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

          • by StikyPad (445176)

            Sorry, that's not what I meant to infer. I was referring to the rose trick as the patentable invention. Since most magic tricks are machines/gadgets, and since this rose is sold along with instructions on how to use it, we can assume it's an invention.

            Unless someone can tell me what idea is being expressed by a dance, it shouldn't be covered by anything.

        • by geekoid (135745)

          Nope, it
          s pretty clear it falls under copytright.

          A fundamental principle of copyright law is that copyright covers the expression of ideas but not the ideas themselves.
          Dance, and pantomime, and other performances are expression of ideas.

          It is not about the technical aspect of the rose falling apart, it is about the performance in doing so.

          If the other magician talked and wore a sad clown face while playing tragic music of a love lost as the rose comes apart, it would be fine.

          And that would be kind of awesom

    • Re:Very sad (Score:4, Informative)

      by tmosley (996283) on Wednesday April 18, 2012 @02:28PM (#39726549)
      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.
  • by mseeger (40923) on Wednesday April 18, 2012 @02:19PM (#39726389)

    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 ;-).

  • by RightSaidFred99 (874576) on Wednesday April 18, 2012 @02:20PM (#39726395)
    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"?
    • by Anonymous Coward on Wednesday April 18, 2012 @02:40PM (#39726709)

      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.

    • by eldavojohn (898314) * <eldavojohn AT gmail DOT com> on Wednesday April 18, 2012 @02:41PM (#39726727) Journal
      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 [justia.com]. 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 ...
    • by Halo1 (136547) <jonas.maebe@NospAm.elis.ugent.be> on Wednesday April 18, 2012 @02:43PM (#39726745) Homepage

      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.

  • by Compaqt (1758360) on Wednesday April 18, 2012 @02:20PM (#39726397) Homepage

    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?"

  • ...you guys act like it's some big deal. http://www.youtube.com/watch?v=XP4_MuBugFo [youtube.com]
    • by geekoid (135745)

      I know, right? This underline how hard it is for people to divorce performance from reality.

  • ... not something I could cook up in two hours with a small electromagnet and a bit of ferrous metal embedded in the leaf stem?

    I take PayPal if anyone wants to pay $3000 for detailed plans, sketched on the back of a used bar napkin.

  • How fast did their lawyers find that video that it only had 14 views on it when screenshotted, impressive.

  • I find it ironic Teller is boo-hooing about this.

  • by tekrat (242117) on Wednesday April 18, 2012 @02:28PM (#39726553) Homepage Journal

    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...

  • by Xunker (6905) on Wednesday April 18, 2012 @02:29PM (#39726563) Homepage Journal

    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.

  • by mark-t (151149) <markt@ l y n x.bc.ca> on Wednesday April 18, 2012 @02:32PM (#39726597) Journal

    Imitation is a form of flattery. He should take it as such, or simply decide to not show off what he doesn't want people to copy. Magicians have been figuring out how other magicians do their tricks for centuries. Unless the secret was actually misappropriated (which means he would have actually broken the law to acquire it), the copier has done absolutely nothing wrong here.

    Oh.... and you can't copyright an idea.

    • by Babbster (107076)
      "Imitation" would be one thing. If this guy was just doing the illusion on stage, Teller likely wouldn't bother suing. This guy, however, offered expensive kits for sale so that others could do it, and they don't have to go to the trouble of figuring it out for themselves or even appreciating Teller's part in its creation.

      I don't know if the suit can be won, but writing this off as sincere flattery is a mistake.
    • Except that he does have a copyright on the trick's performance. So.... it really doesn't matter what you say.

      • by mark-t (151149)

        It doesn't matter what he says... what matters is what copyright says. What matters even more is what a judge says.

        I like Penn and Teller, but personally I'm rooting for this guy. Not just because he's the underdog in this case, but because what he is doing is absolutely no different than what other magicians have been doing to eachother for hundreds of years.

  • Wasn't FOX sued over that magic secrets revealed show?

    • by mark-t (151149) <markt@ l y n x.bc.ca> on Wednesday April 18, 2012 @02:45PM (#39726783) Journal

      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.

  • by v1 (525388) on Wednesday April 18, 2012 @02:32PM (#39726607) Homepage Journal

    to piss off someone that can make you disappear

  • How libertarian (Score:2, Insightful)

    by Anonymous Coward

    to sue for government protection of your ideas. I'm sure litigation over reverse engineering of a performance something very near to the heart of free men everywhere.

  • You stay classy Teller!

  • Because Penn is such a lunatic libertarian he barely wants any laws at all.

  • Telling a joke is a copyright infringement.

  • It doesn't seem hard to do. You just need piano wires threaded up the rose stem, which are withdrawn to make parts of the rose fall off. Either some mechanism under the table or an assistant is pulling the wires.

    This illusion puzzles people? It's an elegant performance piece, but easy to figure out.

  • Here's the problem with Teller's claim:

    "As a direct and proximate result of such unfair competition, Plaintiff [Teller] has suffered, and will continue to suffer, monetary loss and irreparable injury to his business, reputation, and goodwill."

    I give him the last one; his goodwill definitely comes out of this injured, but how exactly has Teller suffered "monetary loss and irreparable injury to his business [and] reputation" ? Teller wasn't selling a kit with the trick, so he's not going to lose any "potential sales". No one seriously believes that people planning to go see or hire Penn & Teller will change their minds and hire Gerard Bakardy instead, and Bakardy made it perfectly clear that his trick was

  • by eclectus (209883)

    Given Teller's persona on stage, I'm really trying hard not to make a Non-Disclosure Agreement joke....

  • stage name Gerard Bakardy (real name: Gerard Dogge)

    Can't teach an old Dogge new tricks?

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