Performers who want to protect their tricks with the law have an uphill battle.
In 1921, a slick, savvy, and territorial Russian-American magician named Horace Goldin filed for a US patent on the now legendary sawing-a-lady-in-half trick. Goldin wasn't the first magician to perform the illusion, but he'd built a solid career around his painstakingly constructed and unique apparatus, and figured a patent would be a great tool to prevent his competition, even his predecessors, from bisecting ladies on stage.
His patent came through in 1923, and for a time life was good for Goldin. Then, one day in 1933, he came across an ad by R.J. Reynolds, the makers of Camel cigarettes, which included a meticulous description of his routine. They were debunking competitors' ads under the slogan, "It's Fun to be Fooled ... It's More Fun to Know," alongside rational explanations for mystic phenomena. Thanks to the requirement that any patent holder publicly disclose the workings of their protected device, Goldin's apparatus was open fodder.
A frantic Goldin rushed to the courts, arguing that this exposure was hurting his act, but his case was dismissed out of hand. Thereafter, Goldin never filed another patent and the wider magical community of America began to feel that their profession, with its peculiar balance of publicity and secrecy, wasn't well served by the existing protections offered under American law.
Magicians aren't the only creative folks who feel they've fallen between the cracks. Notable chefs and fashionistas have griped for years about how hard it is to protect their recipes and designs.
But in magic, where innovation is costly, slow, and subtle, the stakes feel pretty high. For years, prestidigitators sidestepped these concerns by developing an internal ethical code and sanction system to keep the tiny community fair and profitable. Then along came the internet and its flood of debunkers, renegade hobbyists, and general killjoys, ushering in a golden age of trick theft and exposure that left many performers biting their nails. In this jittery environment, leagues of magicians and lawyers have started to reexamine the place of magic in American law—just last June, the Thomas Jefferson School of Law in San Diego hosted a whole conference on "Law and Magic." But no one yet has a great idea of how to resolve the conundrum, much less the clout to push through a solution if there were one, meaning that rather than find protection for their patter and techniques magicians may have to change the way they find their edge and audience.
Granted, the patent system Goldin used, which gives an inventor exclusive rights to a solid invention (which few tricks use) for a number of years, isn't the only American law magicians can take advantage of. Copyrights can protect choreography, pantomime, and writings and recordings in an act and trade secret and contract law allows a magician to enforce silence amongst his employees or coworkers. (Trademarks are almost irrelevant—they just protect the name or logo of a trick.)
Teller performs "A Rose and Her Shadow"
A few magicians have used this combined arsenal to good effect, like Teller of Penn and Teller, who in 2012 sued a Belgian magician named Gerard Dogge, a.k.a. Bakardy, for posting an online explanation of Teller's "A Rose and Her Shadow" routine and offering to sell instructions for it, which Teller had meticulously protected years earlier. Teller won his case, but only after two years of complex legal wrangling.
For most magicians, these legal tools are just too flawed to work, not to mention the inherent exposure involved in obtaining a patent. For copyrights, there are few tests or guidelines to determine when a routine deserves protection—a 1943 court once declared magician Charles Hoffman's Think-a-Drink routine not dramatic enough for protection—or when an act is similar enough to violate copyright.
Charles Hoffman performs his Think-a-Drink trick
As Steve Leventhal, an amateur performer and perhaps the only lawyer to have a motion filed against him for doing magic in a courtroom, puts it: "If you do the same card trick, but produce a different card at the end, is it the same trick or not?"
And trade secrets are a bust because, according to Louisiana State University law professor and curator of the Law and Magic blog Christine Corcos, "if another [person] sitting in the audience, for example, can figure out a way to perform the illusion, then the magician has no recourse against that person," because they wouldn't have signed a contract.
Even a patent wouldn't help, if the new invention were independently developed and slightly different from the original design. You can protect a very specific device and some very specific patter, but not your big idea or vital secrecy.
Almost all of this is moot because most magicians don't have the cash to push a legal case anyway, especially if it involves a magician overseas, operating under a whole different legal code like Dogge. And even if they do manage to scrape together the right protection and legal resources to win a case, says Leventhal, "they get an injunction against the other magician [doing or selling their trick], and then what?" The trick's already debunked, the legal money's already lost, and more likely than not, unless you have a well established routine like Teller that people will come to see regardless, you're back to the drawing board.
Corcos believes this environment incentivizes "more effective and amazing illusions, and more wonderful and amazing artistry."
But, explains Leventhal, "it's expensive to develop a new trick." It can take months of effort while living on very narrow margins to make something new levitate. Then a YouTube channel can just debunk the trick or a knock-off company can sell their own perhaps slightly modified tutorial online weeks later. It's crippling, not inspiring.
Some magicians, writes Simon During, a professor at Johns Hoplins University and author of Modern Enchantments: The Cultural Power of Secular Magic , try to solve this conundrum by planting false patents to throw off competitors.
But most just rely on informal, internal policing forces, which Yale Law grad Jacob Loshin argued in an influential 2007 paper, " Secrets Revealed: How Magicians Protect Intellectual Property without Law ," are more effective at capturing the idiosyncratic dynamics of magical tricks and potent in offering fitting punishments. Groups like the International Brotherhood of Magicians unite the resources of performers to develop ethical norms, ostracize transgressors, and collectively fight on behalf of magicians to stop exposure outside the magical community.
That sort of community ethical code means less and less today. These organizations' members readily share tricks amongst each other and sell them with a warning that they should never be used in one's own act or for profit without proper credit or licensing, which depends entirely on trust and ethicality in a close-knit community. But tricks are often sold to a general public hungry for the behind-the-scenes details of how they were fooled. Even magicians won't be scared off by traditional, informal threats now—Leventhal isn't in a magical organization, but he still gets work even without traditional approval.
"Fear of flaming is the only thing these groups have," says Leventhal.
And that doesn't scare many people these days. So now we've got an environment of rampant theft and exposure that would make the protagonists of The Prestige blush.
"You put a trick on YouTube and it's gone," says Leventhal. "It's brutally easy. And how do you police it?"
In an ideal world, magicians would enshrine their internal codes into some sort of enforceable laws—give their traditions teeth. In a throwback to the days of guilds, they'd have an environment in which they could share with each other, maintain their secrecy from the public, and put a strong injunction on any traitor or interloper.
But, says Corcos, "complete protection is just 'not in the cards.'" Magicians don't have the cultural capital to push for legal change—none of them even think they can lobby for it—nor do many have the resources or inclination to craft a solution. And even if they were better protected legally, "some people are just not put off by the law, and will infringe, thinking that they will not be caught, or if they are caught, the rights holder will not pursue them because it's too costly and time consuming," explains Corcos. Legally, that's far up shit creek without a paddle.
Magicians can't really protect their tricks. Months or even years of effort can go up in smoke in seconds. But magicians aren't left in the dust, shaking their fists at an angry god of internets and intellectual property. Instead, go to your average magic show, and you'll find that they're still performing updated versions of Goldin's sawing-a-lady-in-half trick—and people still pay to see it.
That's because they can still make the whole affair a glitzy spectacle, something you'll happily watch for the pomp and showmanship. Leventhal talks about one magician named Chris Hannibal who now even sells video of his tricks with full explanations of how he does them. He's not counting on mystery and belief anymore.
"He's confident people don't have his performance skills," says Leventhal. "So much of [modern magic] is in the performance, the ability to hold a crowd on the street corner for seven minutes. There are so damn few great performers. People can take the tricks, but they still can't make that less magical."
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