Integrity of Using Effects You Figure Out

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I think it depends. If you can learn it from the trailer or a televised performance, definitely. Some kid who puts it on YouTube, bit of a gray area. If I wanted to learn something, I'd frequently just look for some performance by an idiot kid who couldn't do it right, since that was basically as good as a tutorial. However, that's basically a tutorial.
 
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While these are all useful, I'm more concerned about this question:
A common effect everyone uses is the subject. I see it. I'm playing around one day and I figure out how it is done. Am I allowed to now use it personally, just for myself and performing for laymen?

And the big Idea is, can I now take that effect and work on it to either make it completely different, or work on it to make it significantly better/different. I would use that for personal use and performing for Laymen. Now if ever I do wish to release it I would without a doubt first contact the creator of the Original Effect, ask if it is ok, and if they say yes, give credit up front, and repeatedly.
 
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While these are all useful, I'm more concerned about this question:
A common effect everyone uses is the subject. I see it. I'm playing around one day and I figure out how it is done. Am I allowed to now use it personally, just for myself and performing for laymen?

Depends on the definition of allowed. If you are asking literally, then yes. You are allowed to do whatever you want following the rules and law of the land. No effect can be protected so that only the creator can perform it (I think Penn & Teller actually do have one performance protected like this, but usually this isn't the case).

If you are asking a question about ethics, then this is debatable. Personally I think you should be able to perform it. Especially if the creator is selling the trick. It's not your fault it can be easily reversed engineered; granted, ChristopherT has a made a good point in an earlier post:

But sometimes a trick comes out and you go, "Hey, that's cool, I never thought of that." That is the point where I, personally, think that if I'm going to use that idea, it's not mine, I owe the person. I have purchased more than one product which I never even read or watched. I paid for it because I felt I was rewarding the creator for putting that concept out, and the concept helped me.

I want people to keep putting those things out, so that I can keep being inspired to create my own stuff. It's like when you give a spinning plate a little more momentum. Keep it all spinning.

This is the most respectful thing you can do. In addition I think you should also give the trick the time and attention it deserves in practice and rehearsal. Don't go out there performing some other person's trick half-baked.

What about a routine that was never for sale? Should we be able to perform these? Makes me think about the movie Prestige. Where Christian Bale has an effect called the Transported Man, and Huge Jackedman steals the concept (not necessarily method) in order to steal Christian Bale's audience. I'm not trying to make a point here, I just wanted to slip in that Huge Jackedman joke and also promote a movie I think is pretty good.

Anyway you can think about it like this. If you created a beautiful illusion, would you give it away for free? Would you sell it? Or would you keep it to yourself because you wouldn't want anyone else to use your masterpiece? However you answer this is the answer to if you should copy an effect made by someone else or not. Because as long as you're morally okay with your decision and you're not breaking any actual laws, then do whatever.
 

RealityOne

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I have definitely reverse engineered effects and performed them with a method that I suspected was being used (mostly when it comes to basic card tricks, etc).

Although I can reverse engineer a method for most effects, if the concept (presentation, design and method) is good enough for me to use in performance, I feel that I should pay the creator for the ideas behind the concept.

When performing for lay people, I don't think I have ever explained that "I saw someone perform this effect on a TV special, and I worked out a method that I think they used." It seems odd to give credits when performing, so I tend to simply not go there and focus on them and their experience.

I don't think anyone is saying you give credit to the creator in a performance. Rather, you need to give credit (and seek permission if necessary) when teaching effects that are based on that effect.

If I wanted to learn something, I'd frequently just look for some performance by an idiot kid who couldn't do it right, since that was basically as good as a tutorial. However, that's basically a tutorial.

That is no different than learning from an exposure video. If the effect is worth performing, it is worth paying the creator for the idea rather than learning it though someone who didn't create the effect.

A common effect everyone uses is the subject. I see it. I'm playing around one day and I figure out how it is done. Am I allowed to now use it personally, just for myself and performing for laymen?

Allowed - well nobody will stop you. Should you? No. If an effect is worth performing, it is worth paying the price to learn it from the person who created it.

And the big Idea is, can I now take that effect and work on it to either make it completely different, or work on it to make it significantly better/different. I would use that for personal use and performing for Laymen. Now if ever I do wish to release it I would without a doubt first contact the creator of the Original Effect, ask if it is ok, and if they say yes, give credit up front, and repeatedly.

The key to what you said is "completely different" or "significantly better/different." Using a blue deck instead of a red deck... not so much. Using blank cards instead of regular cards... maybe. Using a rough/smooth rather than Svengali deck... probably. The real question is a matter of degree - is it substantially different to be considered a different effect or significant variation.

There is one card to bottle routine that I do where I've changed the method to force and vanish a card from the deck, but everything else remains the same. Different effect? No. Slight improvement on method? Yes. There is another effect that I perform where I changed the method used to vanish/switch a dollar bill. Different effect? No. Big improvement on method? Yes. Could I market the effect with the new method? No. Could I market other uses of the method? Yes.

What about a routine that was never for sale? Should we be able to perform these?

A routine is a combination of the effect (what the audience sees), the method (how it is done) and the presentation (scripting, blocking, etc.). I know the amount of hard work that goes into developing each of those parts of an effect. I think that copying a routine that is never for sale is ethically one of the worst things you can do in magic. Not only are you stealing someone else's ideas, but it evidences a laziness and lack of creativity on your part.
 
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Feb 1, 2017
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A routine is a combination of the effect (what the audience sees), the method (how it is done) and the presentation (scripting, blocking, etc.). I know the amount of hard work that goes into developing each of those parts of an effect. I think that copying a routine that is never for sale is ethically one of the worst things you can do in magic. Not only are you stealing someone else's ideas, but it evidences a laziness and lack of creativity on your part.

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. I am lazy, and I do lack creativity in magic. I have other focuses in life that take priority. I can only dedicate so much time into magic. So yeah, if I see an effect that I can figure out the method to, I'll use it. Sold or not by the creator. If the patter they used fits my style and I think it'll work to make my audience entertained and happy, I'll use it. Is it really ethically wrong to use a magic trick idea I "stole" to spread entertainment and happiness to other people? I don't know. Perhaps. Perhaps not.
 
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Josh Burch

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I think it depends. If you can learn it from the trailer or a televised performance, definitely. Some kid who puts it on YouTube, bit of a gray area. If I wanted to learn something, I'd frequently just look for some performance by an idiot kid who couldn't do it right, since that was basically as good as a tutorial. However, that's basically a tutorial.

I can't see a scenario where this example would be acceptable.
 
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WitchDocIsIn

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Is it really ethically wrong to use a magic trick idea I "stole" to spread entertainment and happiness to other people?

Yes. It is.

Some of the best magic in the world was created by hobbyists. If you are using someone else's material that you have not somehow obtained the rights to, you are stealing their intellectual property. All you're doing is justifying it because you are, as you stated, lazy and not creative.

Here's the thing - creativity is a skill. The more you use it, the more creative you become. So all you're doing is saying, "I can't be bothered to get good at this, so I'll copy the material of the people who actually are good at it".

Just because you're not making a living from magic doesn't mean it's ethical to steal material from those who are - or from anyone who put the effort into creating something.

Check out this article: http://www.newyorker.com/magazine/1993/04/05/secrets-of-the-magus - specifically, this quote:
“A guy comes up and starts telling me he’s a fan,” he recalls. “I say thank you, that’s nice to hear. He says he used to see me perform in Boulder, Colorado. That’s nice, too, I say. Then he starts talking about this wonderful piece I did with a mechanical monkey—really one of the most bizarre routines I ever worked out—and I thank him, and he says, ‘Yeah, I get a tremendous response when I do that. Audiences just love it.’ And I say, ‘Let me ask you something. Suppose I invite you over to my house for dinner. We have a pleasant meal, we talk about magic, it’s an enjoyable evening. Then, as you’re about to leave, you walk into my living room and you pick up my television and walk out with it. You steal my television set. Would you do that?’ He says, ‘Of course not.’ And I say, ‘But you already did.’ He says, ‘What are you talking about?’ I say, ‘You stole my television!’ He says, ‘How can you say that? I’ve never even been to your house.’ This guy doesn’t even know what a metaphor is. People ask me why I don’t do lectures at magic conventions, and I say, ‘Because I’m still learning.’ Meanwhile, you’ve got people who have been doing magic for ten months and they are actually out there pontificating. It’s absurd.”

Some of the best magicians in history have been hobbyists. There's a joke that goes like this, "The innovation comes from amateurs, because the professionals are too busy looking for work."
 
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timsilva

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Although I can reverse engineer a method for most effects, if the concept (presentation, design and method) is good enough for me to use in performance, I feel that I should pay the creator for the ideas behind the concept.

I don't think anyone is saying you give credit to the creator in a performance. Rather, you need to give credit (and seek permission if necessary) when teaching effects that are based on that effect.
and lack of creativity on your part.

Great points here. I tend to agree with both of your ideas although I haven't really thought about it too deeply. I'll offer an example. In one of Calen Morelli's YouTube videos, he does a two-handed card-flourish and then in the middle of all of the fast movements, he floats a card in slow-motion for a moment before finishing off the flourish. He hasn't published this anywhere to date (that I know of), and I would happily pay for it (his thoughts/wisdom on the concept would be great too) if it existed out there. I love the idea, and I formed my own method/hook-up and a few presentational approaches around it. Perhaps I should send him the cost of a lunch since I have gotten so much mileage out of his idea. Mind you, I don't perform professionally or for a living.

Your second point is exactly what I meant. :cool:
 

Josh Burch

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Great points here. I tend to agree with both of your ideas although I haven't really thought about it too deeply. I'll offer an example. In one of Calen Morelli's YouTube videos, he does a two-handed card-flourish and then in the middle of all of the fast movements, he floats a card in slow-motion for a moment before finishing off the flourish. He hasn't published this anywhere to date (that I know of), and I would happily pay for it (his thoughts/wisdom on the concept would be great too) if it existed out there. I love the idea, and I formed my own method/hook-up and a few presentational approaches around it. Perhaps I should send him the cost of a lunch since I have gotten so much mileage out of his idea. Mind you, I don't perform professionally or for a living.

Your second point is exactly what I meant. :cool:

This is an example of how it can get a little cloudy. I personally would not do the slow motion move unless I could change it enough to be my own. I use a sentiment from Paul Clayton (Bob Dylan's mentor) to guide my creativity. Take what you love and change it. If they go fast you go slow, if they go up you go down. As we change enough little bits eventually we come up with something new.

So, when I look at Calen's bit I start brainstorming. - Could I try to spin the card in the air? Could something else magical happen that would add to the flourish? Can it vanish? Can it change color in mid air? Could it float up and stick to my forehead? Could I drop a card and pick it up with levitation? Could I drop a card and have it fuze to the floor impossible for anyone to pick up but me? Could I begin to drop the card then reverse time to catch it again? Could I take advantage of an incidental moment in another way? If the card is dammaged could I fix it mid flourish?

Eventually, I will come up with something that may have started with Calen's effect but it turns into something different (possibly better) and totally unique to you.
 
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Yes. It is.
Some of the best magic in the world was created by hobbyists. If you are using someone else's material that you have not somehow obtained the rights to, you are stealing their intellectual property. All you're doing is justifying it because you are, as you stated, lazy and not creative.

I don't have to justify anything to anyone on an internet forum filled with a bunch of people I don't know. I'm simply stating my opinion on the matter and encouraging healthy conversation on a topic.

And people on these forums keep bringing up intellectual property, without any real understanding about what that means and how that works legally. First of all lets establish that there is no real correlation between legality and ethics, but since intellectual property rights is what magicians always want to lean on as a crutch when talking about ethics in magic we'll go in that direction.

Case in question: Can we perform a Magic Routine that is not for sale, but clearly created by someone else? We are not performing for money, revealing or selling the trick.

Let's say you can get copyrights for your whole routine that you made up. Is it actually protected by copyright laws regarding the case above in bold? The defense to copyright infringement is the Fair Use Policy which has multiple parts.

-Amount/Substantiality (How much have you taken / transformed from the original)
-Commercial / Non-Commercial (Are you selling it or monetizing it in anyway)
-Nature of the Copyrighted Work (What is it? Lyrics, a drawing, a movie character a performance?)
-Effect on Potential Market (Does you performing it affect how much money the creator can potentially make?)

-The first one is clear. If we copy the routine exactly we wouldn't be able to use this argument.
-The second one favors the person performing the allegedly "stolen" trick because that person isn't making a profit.
-The third one is interesting because Magic is a performance art. Which is not protected by copyrights. The lyrics to a song may be, but the performance of it is not. Which is why you see a lot of people making covers to songs and things like that. Same with magic. The routine is copyrighted, but you can't pin me for performing it, unless perhaps I am making money from it. A lot of people on this forum think performance should be protected by copyright because the world has this obsession with property. Performance art in essence is a relationship between performer and audience, a connection between people. It isn't something you can own.
-Finally the last one also favors the "thief" performer and not the creator. Me performing the trick without buying it technically means he/she can't profit from me, but that isn't a substantial amount that would hold up in court. Also in our case, the creator isn't even selling it anyway. The only way I could be affecting his/her profits is if I am some how taking away his/her audience because I am performing it for free. It would be impossible to make this case. I'm pretty sure out of all the times I have performed French Kiss, Wayne Houchin hasn't lost a dime. It's the people who reveal the method that do that to him.

No magician could ever make a case against me with regards to copyrights and intellectual property just because I am performing something he/she has performed, unless I make money from it. You could probably pin me if I sell it, reveal it or whatever else, but that's it. 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.

Here's the thing - creativity is a skill. The more you use it, the more creative you become. So all you're doing is saying, "I can't be bothered to get good at this, so I'll copy the material of the people who actually are good at it". Just because you're not making a living from magic doesn't mean it's ethical to steal material from those who are - or from anyone who put the effort into creating something. Check out this article: http://www.newyorker.com/magazine/1993/04/05/secrets-of-the-magus - specifically, this quote:

I like the article, especially the last couple of sentences towards the end that you quoted. Nice touch. I see now what people like Ramsay and Madison are referring to when they talk about the older magic community.

P.S.
The story you quoted is a little bit ironic. Jay is accusing the fan about not understanding a metaphor, but he himself doesn't even know what a metaphor is. What he used there was an analogy. Similar, but not the same. 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.
 

Josh Burch

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Aug 11, 2011
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No magician could ever make a case against me with regards to copyrights and intellectual property just because I am performing something he/she has performed, unless I make money from it.

If you are copying a magician you are at the very least plagiarizing. This is commonly seen as wrong but not always illegal. Money is besides the point. If we look at the legal issues in other artistic fields we can get a better handle on the regularly accepted moral values that inspired the law.

Magic does not have the same legal protection as music, theater or written text so rely on the community to protect each others creations. In theater it in order to perform a play the producer has to obtain permissions and pay the original artistic team to perform their play. It doesn't matter if they are selling tickets to the performance, you still have to pay the writer of the script to use their product.

Choirs have similar moral codes. Every few years publishers of sheet music will sue a school that fails to purchase a piece of music for every member of the choir.

These are issues faced by churches, schools and non-profits. These are all amateurs and hobbyists that run into legal problems from performing for entertainment.

Magic does not have the same legal issues but it is clear that the moral code should still apply. If the creator of a play needs to be paid in order for you to perform their play and a composer needs to be paid for you to perform their piece of music, be it paid or unpaid, why shouldn't a magic creator be afforded the same courtesy?
 
Feb 1, 2017
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Magic does not have the same legal protection as music, theater or written text so rely on the community to protect each others creations. In theater it in order to perform a play the producer has to obtain permissions and pay the original artistic team to perform their play. It doesn't matter if they are selling tickets to the performance, you still have to pay the writer of the script to use their product.

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.

Choirs have similar moral codes. Every few years publishers of sheet music will sue a school that fails to purchase a piece of music for every member of the choir.

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. This, however, doesn't protect school football game halftime shows, and parental videos of their children performing that would be distributed beyond immediate family. (source: My sister. Paralegal Assistant at Pacific Crest Law Partners)

These are issues faced by churches, schools and non-profits. These are all amateurs and hobbyists that run into legal problems from performing for entertainment.

See above; granted I won't pretend I know all about the legal issues these organizations face. I only know of a few examples, and the information provided to me from research and a family member who is currently studying law.

Magic does not have the same legal issues but it is clear that the moral code should still apply. If the creator of a play needs to be paid in order for you to perform their play and a composer needs to be paid for you to perform their piece of music, be it paid or unpaid, why shouldn't a magic creator be afforded the same courtesy?

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.

Magic does not have the same legal issues but it is clear that the moral code should still apply

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.
 

RealityOne

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Nov 1, 2009
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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.:D
 

timsilva

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Could I try to spin the card in the air? Could something else magical happen that would add to the flourish? Can it vanish? Can it change color in mid air? Could it float up and stick to my forehead? Could I drop a card and pick it up with levitation? Could I drop a card and have it fuze to the floor impossible for anyone to pick up but me?

...

I have explored many of these ideas. Like what I'd guess most magicians do, I can't help but add/remove/tweak elements from effects. I have used it for a changing card a few times but I have trouble finding a logical/presentational connection between floating a card in slow motion and changing the card afterwards. I think it is natural to want to try something different that might be better or at the very least somewhat our own. I did change the handing to look different, but if you asked two spectators to describe his original video and the version that I perform every so often, they're take-away memory would be the same, something like; "The magician floated a card in slow motion for a second, I swear!"

+1 on the law and ethics being separate. There are plenty of unethical acts one can take that are technically legal.

For me, the public domain concept is important to understand. Like paying your taxes, it is a bit blurry and you can make an argument to justify a write-off, but the tax collectors might not be as easily persuaded as you are. At this point, if you know a few basic sleight of hand moves, two card monte (which has many other names, I know) is easy to deconstruct. I think most magicians would agree that performing this effect is easily within the public domain range at this point (not sure about the legality, but certainly culturally). The question is, does showcasing an idea in a video/lecture/live performance that uses common utility moves and gimmicks mean that its okay for other magicians to practice them and/or perform them recreationally? I think there could be persuasive arguments made both ways, much like the broader topic of how the internet has changed magic. While there are serious negative consequences from video platforms and social media, I tend to agree with JB's thesis that as longer as the levels of amazement are increasing overall, the net benefits are worth those costs. If me recreating and fine-tuning someone else's effect that uses concepts I am already familiar for casual performance leads to more people being interested and engaged in magic, it is good for the longevity our art form. I agree that this is definitely in the cloudy area, and in many cases the many hobbyists who do this should reach out to the creators just for the sake of receiving their blessings to use their ideas (as well as possibly offering to pay for the concept as well). There are three levels of distinction; practicing/deconstructing it, performing it, and earning income/benefits from it. The ethics become more complex at each stage. The last stage should require permission/compensation, and the second stage might depending on the context.
 

Josh Burch

Elite Member
Aug 11, 2011
2,966
1,101
Utah
As these debates become longer it's easy to turn to name calling and other inappropriate behavior. I have every intent of being respectful. At the end of all this we may still disagree, that's fine. I just want to keep it civil.

I have to admit, I am not an expert either. I'm not a lawyer like David but my minor for my first degree was legal studies. That really doesn't mean all that much but I have wondered a lot about magic and law as I have created a bunch of magic myself. I'd like for it to be protected from thieves and pirates.

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. This, however, doesn't protect school football game halftime shows, and parental videos of their children performing that would be distributed beyond immediate family. (source: My sister. Paralegal Assistant at Pacific Crest Law Partners)

After further research it is more nuanced than I realized. All of the cases I could find involving choirs being sued had to do with them charging money. Here's an example: http://radaronline.com/videos/burbank-high-school-choir-director-leave-copyright-lawsuit/

My own choir teachers and theater directors used to really hammer the importance of purchasing music, "John Rutter and Mack Wilberg have to get paid or they wont create anymore!" According to this article put out by the National Association for Music Education churches generally won't have a problem, and neither will school choirs. Problems can occur with mall performances, travelling choirs and media recordings that are shared publicly. Then there are dramatic works as David stated, you'll run into issues with these.

http://radaronline.com/videos/burbank-high-school-choir-director-leave-copyright-lawsuit/

See above; granted I won't pretend I know all about the legal issues these organizations face. I only know of a few examples, and the information provided to me from research and a family member who is currently studying law.

My perspective is similar. I have a limited education when it comes to law.

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.

I get your point here. Technically if it can be proven that the mall stood to benefit by way of you singing a protected song you could hypothetically run into problems (see the above article about mall performances). In the real world this isn't going to happen.

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.

I feel like one can argue that for the majority of laws they had at one point some type of a moral reason for their creation. I would argue that they are related but you're right. Just because a law says that it's legal to smoke doesn't mean it is morally the right thing to do. So if we cut all of the legal stuff out of the argument what are we left with?
 

Josh Burch

Elite Member
Aug 11, 2011
2,966
1,101
Utah
David, Christopher and I seem to agree, it is not ethical to take anothers trick and perform it without their permission. You generally get their permission by purchasing the trick or learning it from them directly. This applies to hobbyists and professionals.
 
Feb 1, 2017
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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.

My mistake

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.

First of all let's not even talk about patents and magic tricks. I don't know why you even brought that up. The reason this is faulty, as you should know, is that patents are open to the public. Ding! Which means the trick is revealed. Patents can't protect a trick, only reveal it. Trademark Law only lets you protect the name or logo of your trick. We are strictly only talking about Copyrights. Because that is the only one that could potentially apply to magic tricks.

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.

No. They include those categories, but are not limited to. Think fan art. It is well understood in the industry that people can use and draw characters they don't have the license to for the purposes of showing it to people as their talent, as their capability as their skill. It's an understood rule, even though it violates every single possible real written law that is established in this area, that this is okay because society adopts and absorbs and accepts that there are certain exceptions for certain types of activities.

So whenever a case like this is taken to court, regarding copyright and fan art, the fair use defense is applied and comes out on top nearly every time. Even though fan art doesn't fall into any of those categories either. This is according to DeviantArt. This example was the premise of my other post.

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

You're right it isn't nonprofit educational purpose, but IT IS noncommercial use, which is favorable when using the Fair Use defense. Now we get into the sleights and presentation. The method itself is not protected by copyright. And it never can be. Section 102(b):

"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

Copyrights literally can only really protect the choreography in magic, and even then that is a stretch.

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 see it more like making a cover of a song. I enjoy the music I hear, and I want to express myself by singing it at the next kareoke event. I see your show, and I perform it for some college kids. A group of people you would never reach anyway. If anyone asks, and they always ask, "How'd you do that" I'll reply that it isn't mine to share. Check out RealityOne. The genius behind the effect.

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?

It does. I would pay you for me using it. This is why I still buy useless cd's. I can just get all the music for free now a days, but I'll still buy the album to support the artist. My point was more along the lines of should we be able to perform a trick regardless if they charge or not. My opinion is still yes, but I would definitely pay the creator if he/she was selling it. Yes.

Don't judge the "older magic community" until you get to know them.
Unless, of course, we actually are the smartest person in the forum.:D

I used room. Not forum. Wasn't even specifically talking about you or anyone in this forum with regards to older magic community. I meant the guy in the story Christopher quoted. It's okay though to insert yourself, and imply that you think you're the smartest guy here; however, it echoes a post you had regarding arrogance and the irony is incredible.
 

RealityOne

Elite Member
Nov 1, 2009
3,744
4,076
New Jersey
First of all let's not even talk about patents and magic tricks. I don't know why you even brought that up. The reason this is faulty, as you should know, is that patents are open to the public. Ding! Which means the trick is revealed. Patents can't protect a trick, only reveal it. Trademark Law only lets you protect the name or logo of your trick. We are strictly only talking about Copyrights. Because that is the only one that could potentially apply to magic tricks.

My purpose of mentioning patents and trademarks was to essentially agree with your statement that intellectual property protection for magic was limited. However, patents have been used to protect magic effects - search out Jim Steinmeyer's Op Art which was patented as a "cart design." Additionally, designs or the "look" of products can be covered by trademarks as trade dress. Again, that coverage is limited to commercial sale. The bottom line is that the intellectual property protection for magic tricks is severely limited.

No. They include those categories, but are not limited to. Think fan art. It is well understood in the industry that people can use and draw characters they don't have the license to for the purposes of showing it to people as their talent, as their capability as their skill. It's an understood rule, even though it violates every single possible real written law that is established in this area, that this is okay because society adopts and absorbs and accepts that there are certain exceptions for certain types of activities.

So whenever a case like this is taken to court, regarding copyright and fan art, the fair use defense is applied and comes out on top nearly every time. Even though fan art doesn't fall into any of those categories either. This is according to DeviantArt. This example was the premise of my other post.

Fan art is not prohibited by copyright law. Copyright law only covers the actual words on the page. So you can't retype Harry Potter and The Sorcerer's Stone, print it out and give it to your friends, but you can write up your own story about Harry Potter and the Toilet of Doom and give it out to your friends. Can you publish that story for money... under copyright law you can. However, in the case of Harry Potter, I believe that the names of the characters as well as the locations are trademarked which prohibits you using them in anything you sell.

You're right it isn't nonprofit educational purpose, but IT IS noncommercial use, which is favorable when using the Fair Use defense. Now we get into the sleights and presentation. The method itself is not protected by copyright. And it never can be. Section 102(b):

"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

Copyrights literally can only really protect the choreography in magic, and even then that is a stretch.

We are in agreement as to the limits of copyright protection - scripts and choreography.

I see it more like making a cover of a song. I enjoy the music I hear, and I want to express myself by singing it at the next kareoke event.

For copyright purposes when talking about a song, if there is an audience and it is a public performance, a royalty is required to be paid:

https://www.legalzoom.com/articles/royalties-for-cover-songs

For karaoke, the license is paid for by the establishment:

https://www.bmi.com/news/entry/2005...tomers_and_copyright_concerns_to_business_own

I see your show, and I perform it for some college kids. A group of people you would never reach anyway. If anyone asks, and they always ask, "How'd you do that" I'll reply that it isn't mine to share. Check out RealityOne. The genius behind the effect.

I think I understand where you are coming from and I think I'm approaching it from a different direction.

I think you are looking at an effect like what Shawn Farquhar did on Fool Us with the signed card to sealed deck. You come up with a method that most likely is different than what Shawn uses. So, the plot is the same but the method is different. That is a close call. See @Josh Burch 's post above about how much of a change makes it different. I would err on the side of not performing that one, but I can understand how others would make a different decison.

What if you also change the plot a bit and aren't using sealed decks because you perform the effect too often. And you also change the method so the signed card appears in a deck where all the cards are the same value. No question in my mind, that really is a different effect and you are good to go to perform and teach.

My problem is more with the presentational elements. Take a look at Jeff McBride's Miser's Dream routine. It is beautiful. I've seen a professional magician use the same routine with an adult -- imagine how stupid that looked when he raised the adult's elbow and coins came out! My presentations are very thought out and researched. My scripts are drafted, edited, practiced, edited, performed and edited more. I would take offense at someone copying my presentation.

Another example is Wayne Houchin's needle swallowing routine. I've seen Wayne perform it and the presentation is amazing because it brings out Wayne's character beautifully. The method is probably in Tarbell. The presentation would be easy to imitate. But there is a reason Wayne hasn't released it... he wants to keep it as his to perform. When I saw that presentation, I fell in love with the effect and presentation. However, I wouldn't perform it the way Wayne did out of respect for how beautiful his presentation was. I'm only now working on the script for a needle swallowing effect using a completely different method and completely different presentation (which fits my character and personality much better than Wayne's presentation).

Maybe we can't agree, but we can at least see each others' point of view.

It does. I would pay you for me using it. This is why I still buy useless cd's. I can just get all the music for free now a days, but I'll still buy the album to support the artist. My point was more along the lines of should we be able to perform a trick regardless if they charge or not. My opinion is still yes, but I would definitely pay the creator if he/she was selling it. Yes.

We are in agreement on this one.

I used room. Not forum. Wasn't even specifically talking about you or anyone in this forum with regards to older magic community. I meant the guy in the story Christopher quoted. It's okay though to insert yourself, and imply that you think you're the smartest guy here; however, it echoes a post you had regarding arrogance and the irony is incredible.

The smiley face was intended to convey that my statement was self-depricating humor because I'm sure that I come across as trying to be the smartest person in the room in some my posts. I try not to be arrogant but instead try to remain open to ideas and knowledge. I've learned a lot about magic from discussions on forums like this one.
 
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Jan 22, 2015
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Spiritually, either you're a creative artist, or you're not.

Maybe, you don't know. But, everyone else who matters in the industry knows.

Do you hang out with your heroes? Would you be proud if they were to see that you were doing other people's material while claiming artistic excellence?

Would you feel ashamed if they expressed their disapproval?

Jimmy
www.jimmyfingers.com
www.magellanlevitation.com
 
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