I agree and disagree here. Your opinion makes a lot of sense to me, but it is also derived from the vantage point of a magician who makes a living doing magic. What about people like me? I am a hobbyist or whatever magicians call people like me. I do it for fun. I perform for college students, random walk arounds and the people who ask me to do a trick when they see me practicing with cards in starbucks.
Assuming facts not in the record. I don't make my living as a magician. I'm happily employed as a lawyer. Respect and ethics are not just limited to professionals.
Let's start with how a magic routine could be protected. The first is by a patent. That is typically used for aparatus that does something. If you have a patent, nobody can make an aparatus using the same method during term of the patent. The second is a trademark. The backs of Bicycle Rider Back cards are trademarked. That means nobody can use that design for a commercial purpose. However, you can print as many Rider Back cards as you want for your own use but you just can't sell them. Copyright covers scripts and choreography. If a magic effect was protected by copyright it would have to be in a written form (that is how Teller won his case with his rose routine). That sort of protection is very rare. Nonetheless, your analysis on fair use is wrong.
Fair use is permitted under Section 107 of the Copyright Act which provides:
107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
So, right out of the box, your analysis is wrong because your use is not a permitted fair use which is limited to "criticism, comment, news reporting, teaching..., scholarship or research." The words "such as" would only include similar items to the ones listed and a performance to share astonishment is not similar to any of the listed used.
Although your use may not be for profit, but it is not "for nonprofit educational purposes." Typically, the purpose and nature of the use is balanced agains the other factors with a commercial use tipping the scales one way and a education use the other. The nature of the copyrighted work in this case tends to work to finding a copyright violation because the work is more creative in nature than a work that is research related. The fact that a work is unpublished makes any use less likely to be "fair." The amount and substantiality of the portion used - if you are using the sleights and presentation, you are using the "heart" of the copyrighted work. Finally, the use isn't determined based on just what you do, but is based on what would happen if your use was widespread. If lots of magicians performed someone unpublished effect that was an integral part of their show for free, nobody would pay for their show. That seems to be a pretty substantial effect on the market for the copyrighted material. For more information, click here:
https://www.copyright.gov/fair-use/more-info.html
Prove that the above case in bold is ethically wrong, without using legal jargon like intellectual property. Yes it is true that somebody's routine is a piece of work as a result of their creativity, which means it is intellectual property, but that does not mean they are protected from other people performing it. Especially performed for free. I'd like to hear your thoughts on why the above case in bold is ethically wrong.
I have an idea for a magic trick and script. I work on that idea for years. I perfect it through performances. It becomes my signature piece. You see my show. You start performing my signature piece for free. That doesn't strike you as being unethical? Like Josh said, it is a lot like plagiarism.
I publish an effect. I charge $10 for the effect. You reverse engineer it or watch a Youtube exposure video and then perform it. You took the idea for the effect, liked the idea enough to perform it but didn't purchase the effect. That doesn't strike you as unethical?
To me, something is unethical based on the result if everyone did it. If everyone copied everyone elses material there would be no incentive for people to be creative and there would be no reward for creativity. You wouldn't be able to tell the original from the cheap copy. I've seen and heard of many magicians who were actually affected by people stealing parts of their acts. It also is a level of respect. If someone has a great effect and great performance, copying it without their permission really is not respecting that person.
It does matter. I can perform the same play at a school for the parents without ever needing permission. The moment you monetize something it becomes subject to copyright infringement.
State your source on this matter? To my knowledge a school can perform anything as long as no admission fees are charged and/or if all proceeds go to educational or charitable purposes.
I'd go with the American Association of Community Theatre:
If you wish to produce a play protected by copyright, you apply for a license--in essence, paying the publisher/agent (and thus the playwright) for performances of the play. These payments are referred to as "royalties," and producing a copyrighted work requires permission and/or payment of royalties. This includes not only plays and musicals, but background music used in a production or performed on stage as part of a play. This is true whether you charge admission or not, and whether you are a for-profit or not-for-profit theatre or a school.
https://www.aact.org/copyright-royalty-resources
Again I don't know this to be true. For sure you will run into legal issues if you're performing something that isn't your original work and you're getting paid for it. But breaking out in song at the mall at the top of your lungs a piece that wasn't written or created by you is far from copyright infringement. Which is essentially what us hobbyists would be doing when performing for non-profit: Performing a piece, designed by someone else, for the entertainment of others.
So, everyone here is in agreement that there is no legal protection for magic effects unless they are patented or copyrighted as a script and/or choreography. I think the key here is that you are using someone else's efforts in designing the effect for your own benefit (i.e. the joy you get entertaining others) without providing them with fair compensation. To make it simpler, you are taking something without paying for it.
Don't mistake legality with ethics and morals. It can be legal tomorrow to kill people, but that wouldn't make it morally/ethically correct. There is no correlation between how legal something is, and how ethical it is.
Exactly. What you are doing is perfectly legal. However, it is questionable in terms of ethics.
I see now what people like Ramsay and Madison are referring to when they talk about the older magic community.
Don't judge the "older magic community" until you get to know them.
Perhaps older magicians have a disposition to being condescending. They still haven't learned that they aren't necessarily the smartest person in the room.
Unless, of course, we actually are the smartest person in the forum.