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Topic: Hypothetical IP scenario
Message: Posted by: gdw (May 22, 2011 10:19PM)
HeSo, let's say that there was some sort of IP protection for magic effects/methods.

Now, let's look at Watch and Wear, Time Machine, Perfect Time. Not the issue of knock offs with them, let's just assume there was only one, and it was the "original."

Now, let's say I own a magic shop, and I offer my customers any of the numerous "normal" watches that happen to have the same function, for the purposes of performing the effect in question.

Would this be a violation of the IP of the progenitor of the effect? If so, how?
Message: Posted by: LobowolfXXX (May 22, 2011 10:23PM)
Nope, I don't imagine so.
Message: Posted by: MobilityBundle (May 23, 2011 11:39AM)
To be sure, I know the these effects, but not the methods behind them. But better still, I know intellectual property law. :)

There's a lot to unpack behind your assumption, "let's say there was some sort of IP protection for magic effects/methods." Among the various ways to protect effects and methods, the only thing really pertinent to your question is patents. While there are some other ways to cover magic effects, they don't protect the "functional" aspects... i.e., how the trick works.

So suppose the trick is patented. Turns out, you can patent something in a lot of different ways. Let's say that there are two types of patent protection on the trick. The first, say there's a patent on the device itself: a watch with structures A, B, and C. Second, let's say there's a patent on the method of using the watch to perform magic; loosely speaking, asking a spectator X, performing steps Y and Z, etc.

If you own a magic shop and you sell a watch, but it doesn't have the structures A, B, and C in the way described by the patent, you don't infringe. Easy as that. Moreover, in selling the watch, you certainly don't perform steps X, Y, and Z -- in other words, you can SELL the watch without PERFORMING the trick.

But if the CUSTOMER would perform steps X, Y, and Z in using the watch you sold him, then you're potentially liable for what's called "inducing infringement." To be liable, a little bit more has to be true -- you have to know about the patent and intend for the customer to perform the infringing steps.
Message: Posted by: gdw (May 23, 2011 12:32PM)
Well that certainly makes all kinds of sense.
Message: Posted by: critter (May 23, 2011 12:34PM)
So you only want to know if it's legal to sell a watch to your Internet Provider?
Message: Posted by: Salguod Nairb (May 23, 2011 12:52PM)
I guess it is like those shops that sell bongs. They are a harmless tobacco shop and have no concept of their patrons of doing anything illegal with their products.
Message: Posted by: RS1963 (May 23, 2011 01:46PM)
[quote]
On 2011-05-23 13:34, critter wrote:
So you only want to know if it's legal to sell a watch to your Internet Provider?
[/quote]

That was my thought too.
Message: Posted by: Salguod Nairb (May 23, 2011 01:51PM)
Originally I thought it was a network question. (Internet Protocol)
Message: Posted by: gdw (May 23, 2011 05:37PM)
Perhaps it would help to have clarification on IP (intellectual property ;) )

To those that have a more thurough understanding of IP law, what is it that protects, for example, the plot of a book, as opposed to the actual words written which are covered by copyright?

Similarly, what about a song? That is, the actual arrangement, not the written notes, or recorded data?

I believe I have a decent understanding of IP, through my studies in media, but would prefer to work with terms set by others, and would appreciate any more professional input than my own.
Message: Posted by: mastermindreader (May 23, 2011 05:45PM)
"Intellectual Property Law" does not refer to a specific law, but rather is a blanket term referring to the area of law that pertains to copyrights, performance rights, trademarks, patents, design rights, trade secrets etc.

Good thoughts,

Bob
Message: Posted by: gdw (May 23, 2011 05:50PM)
[quote]
On 2011-05-23 18:45, mastermindreader wrote:
"Intellectual Property Law" does not refer to a specific law, but rather is a blanket term referring to the area of law that pertains to copyrights, performance rights, trademarks, patents, design rights, trade secrets etc.

Good thoughts,

Bob
[/quote]

Yes, it's more its own section of law.
Message: Posted by: RS1963 (May 23, 2011 06:14PM)
Glenn why don't you ask Bill Palmer he is a member on here and he knows about IP laws I'm sure he can set you straight or he may want to run off screaming after trying to explain it to you. Should be fun anyway send him a message would ya?
Message: Posted by: gdw (May 23, 2011 10:38PM)
RS1963, I appreciate the suggestion, though, as I said, it is not for my own understanding. I was thinking this discussion could benefit from clarifications from someone other than myself.

However, I think the examples I suggested were not the best as the "idea" behind a book is not exactly, itself, protected. This type of thing is why I think the discussion would benefit from clarification from someone else.
Message: Posted by: LobowolfXXX (May 23, 2011 10:54PM)
[quote]
On 2011-05-23 18:37, gdw wrote:
Perhaps it would help to have clarification on IP (intellectual property ;) )

To those that have a more thurough understanding of IP law, what is it that protects, for example, the plot of a book, as opposed to the actual words written which are covered by copyright?

Similarly, what about a song? That is, the actual arrangement, not the written notes, or recorded data?

I believe I have a decent understanding of IP, through my studies in media, but would prefer to work with terms set by others, and would appreciate any more professional input than my own.
[/quote]

To the best of my recollection, a book's "essence" also has copyright protection. A degree of overly "substantial similarity" with respect to plot, theme, setting, characters, dialogue, etc. may give rise to an infringement claim. There is also a cause of action for "idea theft" or "implied contract" when, for instance, an idea is pitched to a movie company; if the company turns you down, then puts out essentially the same movie, a court may find a contract to exist between the parties.
Message: Posted by: MobilityBundle (May 24, 2011 10:01AM)
To be sure, I'm a practicing IP attorney. I work mostly with patents, but I'm sufficiently familiar with other aspects of IP for a discussion like this.

So what is IP? There are four main categories: patents, copyrights, trademarks, and trade secrets. Without getting into a super-detailed discussion:

Patents generally cover functional or utilitarian aspects of inventions. Patent protection usually comes in the form of a list of structures, or a list of steps of a method. Another class of patents cover the ornamental design (but not functional aspects) of something. These "design" patents are common in athletic shoes, for example.

If a thing is patented, then infringement occurs when one makes, uses, sells, or offers for sale anything protected by the patent.

Copyrights cover the creative expressions of an idea, and not the idea itself. Thus, copyrights tend not to be very abstract. For example, consider Harry Potter. In a very concrete form, there's the book... the specific words in specific order. In an abstract form, there's the idea of three kids -- one with a mysterious secret, one who's really smart, one who's not so smart -- all at a magic school in a fictional magical world where mischief is tacitly encouraged, getting into trouble and fighting evil. Copyrights protect the words on the page, but not the abstract idea.

Or with magic, the words of a particular performance might be copyrighted, but not the idea. So you can do all the moves you see another magician does, and you can even still have the same abstract "theme." But you can't copy his patter, or base your patter on his.

Copyright infringement amounts to, roughly speaking, copying, performing, or making derivative works of copyrighted material. A derivative work is something where you sit down with the copyrighted stuff and then change it. It doesn't mean starting with the same abstract idea and making something similar to the copyrighted work.

Copyright infringement is a little more murky than patent infringement, because there are a lot of defenses. For example, you can still do parodies, even though in some sense those are derivative works. There's also a "fair use" defense which is very complicated, but roughly means you can use little bits of copyrighted works for the right purposes.

Trademarks are words, names, symbols, or devices used to distinguish the source of goods or services in commerce. Consider two situations: First, you see an apple on a tree. Second, you see a bottle of Coke in the store with the Coke logo. In both situations, you want to know how the thing tastes.

In the case of the apple, a lot goes in to that question. You look at the apple to see how ripe it is or to see if there are bad spots. You smell it. You feel its weight in your hand, maybe pinch it to see how firm it is. If you're really thorough, maybe you know something about the other apples that came off that tree, or the time of year it is, and all that. And even still, when you bite into the apple with an expectation of its taste, you still might be a little wrong.

With the bottle of coke, you have a pretty good expectation of how it will taste. But not because of anything having to do with physics or chemistry. Not for the same reason you know an apple will taste like an apple. You know it tastes that way because you see the logo. The logo identifies the source of the bottle, and for this particular source, that's all you need to know.

Kinda weird, when you think about it.

In any case, trademark infringement amounts to using "confusingly similar" marks on your products, so that the public thinks that the trademark holder is the source of the goods or services, not you. It's kind of a mushy inquiry that's usually proved with consumer surveys. Not only are the similarity of the marks considered, but lots of other factors like similarity of the goods, channels of trade, among others.

Trademarks can extend into what's called "trade dress," or the packaging or context in which goods are found. For example, a famous case involved a restaurant with a highly specific and unusual decor. Another knockoff restaurant opened with similar decor. Totally different name, but similar decor. They were found to be trade dress infringers.

There's a cousin of trademark infringement, called trademark dilution. For a "famous" mark, like Coke, using that mark ANYWHERE can amount to dilution, even if the goods are radically dissimilar. For example, if I started selling Coke brand aspirin, I'm probably diluting the Coke mark. The idea is that the mark is so famous, consumers might think, "Huh... I didn't know the beverage guys started making aspirin..."

Trade secrets are a little vague to define. They cover any know-how that someone develops in business that can be used for a business advantage. Typical examples of trade secrets are formulas for things, methods for doing things, customer lists, optimized schedules, etc. A lot of trade secrets are patent-eligible in terms of subject matter, but for whatever reason sometimes companies prefer not to patent them and just keep them as a secret.

Of course, the other big requirement for a trade secret is that the company has to actually try to keep it secret. Restrict access to the thing, have non-disclosure agreements in place for people who see the thing, etc.

One doesn't "infringe" trade secrets. They're "misappropriated." Misappropriation just amounts to someone stealing the secret. In particular, if a competitor independently discovers your trade secret, then they're allowed to go use it.

That's the basic overview. Of course, there's lots more to say, but I should really get to work now. :)
Message: Posted by: Salguod Nairb (May 24, 2011 11:04AM)
Interesting read.
Message: Posted by: gdw (May 24, 2011 12:54PM)
Thanks for that MobilityBundle.

So, a song, for example, is not really protected? That is, the physical expressions, sheet music, recordings etc, but what, if anything, makes it illegal to perform the song without permission?
Message: Posted by: LobowolfXXX (May 24, 2011 01:16PM)
The song is (potentially) protected by copyright through the "substantial similarity" analysis. For example, the George Harrison/Chiffons lawsuit with respect to the similarities between "My Sweet Lord" and "He's So Fine."
Message: Posted by: kcg5 (May 24, 2011 03:17PM)
What if you stubbled upon a list of magic PDF's (not enycrypted)? Is it illegal to download from it? Should the user feel the ethical need to tell all the performers/authors?
Message: Posted by: Salguod Nairb (May 24, 2011 03:32PM)
[quote]
On 2011-05-24 16:17, kcg5 wrote:
What if you stubbled upon a list of magic PDF's (not enycrypted)? Is it illegal to download from it? Should the user feel the ethical need to tell all the performers/authors?
[/quote]

Ask Napster.

[img]http://www.geeknewz.com/imagedb/albums/userpics/computer/napster.jpg[/img]
Message: Posted by: MobilityBundle (May 24, 2011 03:34PM)
A song is protected in a lot of independent ways. First, there's the written expression of the song: notes on the page, lyrics, etc.

Then, if the song is recorded, there are a lot of creative aspects that go in to that particular recording. The mixing, the creative interpretations of the artists in that particular performance (e.g., the tempo, the volume, the riffing, etc.). If that song is on an album, there is at least potentially a certain degree of creativity that goes into selecting those particular songs in that particular order.

For example, Mozart's works -- as written down by Mozart or re-published by his contemporaries -- are all public domain, because they're old enough for the copyrights to have expired. But if you go buy a modern recording of one of Mozart's works, you'll still see a copyright notice. What's being protected? Not the notes, but rather the creative aspects of the performer's and/or engineers' contribution to making that recording.


But, to be sure, copyrights only subsist in *tangible* mediums of expression -- written, recorded, etc. So if you independently came up with a song all in your head, performed it live for a group of people, and nobody recorded it, then nothing prevents someone else from performing it elsewhere. It's kind of a silly example practically speaking, but hopefully it's instructive.
Message: Posted by: MobilityBundle (May 24, 2011 03:40PM)
[quote]
On 2011-05-24 16:17, kcg5 wrote:
What if you stubbled upon a list of magic PDF's (not enycrypted)? Is it illegal to download from it? Should the user feel the ethical need to tell all the performers/authors?
[/quote]

Far be it from me to say what's ethical. But in terms of copyright law, there's no "intent" requirement to be an infringer. In other words, if you're downloading something copyrighted (or providing something copyrighted for download by others), you don't have to know it's copyrighted in order for it to be copyright infringement.

Nor is there a requirement for the copyright holder to protect their works by encryption or digital rights management technology.

Of course, even though the textbook answer is that you're an infringer, the practical consequences are often another story. But that's another question...
Message: Posted by: LobowolfXXX (May 24, 2011 04:40PM)
And nor is there a requirement for the copyright holder to register the copyright. It exists upon creation.
Message: Posted by: gdw (May 24, 2011 04:55PM)
[quote]
On 2011-05-24 16:34, MobilityBundle wrote:
A song is protected in a lot of independent ways. First, there's the written expression of the song: notes on the page, lyrics, etc.

Then, if the song is recorded, there are a lot of creative aspects that go in to that particular recording. The mixing, the creative interpretations of the artists in that particular performance (e.g., the tempo, the volume, the riffing, etc.). If that song is on an album, there is at least potentially a certain degree of creativity that goes into selecting those particular songs in that particular order.

For example, Mozart's works -- as written down by Mozart or re-published by his contemporaries -- are all public domain, because they're old enough for the copyrights to have expired. But if you go buy a modern recording of one of Mozart's works, you'll still see a copyright notice. What's being protected? Not the notes, but rather the creative aspects of the performer's and/or engineers' contribution to making that recording.


But, to be sure, copyrights only subsist in *tangible* mediums of expression -- written, recorded, etc. So if you independently came up with a song all in your head, performed it live for a group of people, and nobody recorded it, then nothing prevents someone else from performing it elsewhere. It's kind of a silly example practically speaking, but hopefully it's instructive.
[/quote]

So you could perform concerts, for paying audiences, comprised entirely of other peoples songs, so long as nothing is recorded?
Message: Posted by: MobilityBundle (May 24, 2011 05:38PM)
Nope. That's a little backwards. Copyrights EXIST only in tangible media, but it's possible to INFRINGE copyrights by performance.

Since you ask, here is the statutory list of no-no's. Doing any of these results in copyright infringement. And, to be sure, the list is non-exhaustive, so at least in principal doing something not on the list can get you in trouble:

"[T]he owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission."

To be sure, in the case of sound recordings and nondramatic musical works, there are some limitations. Basically, you can still "cover" songs, but you must pay licensing fees.

If you want to peruse the specifics of the those limitations, look at sections 114 and 115 in the following link. Or if you want to peruse a little more in general, the following link has all the foundational statutes for copyrights.

http://www.law.cornell.edu/uscode/uscode17/usc_sup_01_17_10_1.html

Just an organizational note, sections 101 to 106 lay the groundwork of just when and how copyrights exist. Sections 107 to 122 scale back those rights in certain situations. In other words, sections 107 to 122 provide defenses or exceptions to infringement.

They're generally in decreasing order of importance. So section 107 is the basis of the fair use defense, which is used literally every day by newspapers, critics, etc. This is the defense that makes most of youtube legal. At the other end of the spectrum, section 122 covers secondary transmissions by satellite carriers within local markets. Which I guess is huge if you happen to be a satellite carrier, but not so interesting for the rest of us.
Message: Posted by: mastermindreader (May 24, 2011 06:18PM)
[quote]
On 2011-05-24 17:40, LobowolfXXX wrote:
And nor is there a requirement for the copyright holder to register the copyright. It exists upon creation.
[/quote]

Very true. But you do need to register the copyright if you want to recover damages for infringement. (I know YOU knew that Lobo, but I just wanted to make it clear to non-lawyers that registering is a good idea when it comes to potential remedies.)

Good thoughts,

Bob
Message: Posted by: gdw (May 24, 2011 09:15PM)
If that's the case, and this is something I have never really understood, way are magic effects not covered like songs are?

Not that I want, in any way shape or form, an expansion in IP law, nor does the magic industry have the clout to buy it's way into regulation like the music and film distributors, but this is something I have wondered for some time.

Can you imagine if magic managed this kind of "protection?" Considering the limitations and troubles that have come from sequences of less than a half dozen notes in songs, progress in magic, particularly specific plots, would grind to a halt.
Just think about how many routines and effects have sequences from other effects/routines/performers?
Magic, of all "art forms," is probably one of the most dependant on derivative works.
Message: Posted by: Tom Cutts (May 24, 2011 11:45PM)
[quote]
On 2011-05-24 22:15, gdw wrote:
progress in magic, particularly specific plots, would grind to a halt.
[/quote]Really, has music ground to a halt? It is based on a very small finite number of specific notes.
Message: Posted by: gdw (May 25, 2011 07:56AM)
Tom, apples and oranges.

How many effects and routines are derivative, compared to songs?
Message: Posted by: ed rhodes (May 25, 2011 09:02AM)
[quote]
On 2011-05-22 23:19, gdw wrote:
HeSo, let's say that there was some sort of IP protection for magic effects/methods.
[/quote]

Even hypothetically there can't really be IP protection for an effect. A method certainly but if you can come up with a similar effect without using the exact method, you should be safe. This is similar to a case I read where a hacker (back when the term meant someone who "hacked" at the keyboard until he'd created the program he wanted) created a "Ms. Pac Man" game that was superior to the home released "Pac Man." Atari tried to show that he'd used their code in creating his game. He proved he hadn't and the case was thrown out. (I think Atari may have bought his "Ms. Pac Man" code and released it, but I'm not certain.)

On the other hand, Harlan Ellison has sued and won at least twice for what I thought were awfully thin reasons.

He sued the producers of "Holmes and Yoyo" a comedy show about a mismatched pair of cops one of whom was a robot, claiming it was too close to his own "Brillo" a serious story about a beat cop partnered with a non-humnanoid robot. With his winnings, he bought a billboard that overlooked the studio and had the court decision printed on it.

He also sued the producers of "Terminator," claiming that the story was similar to a short story he'd written which had been made into an "Outer Limits" episode. The episode dealt with a future soldier who'd been blasted back to our time. As he begins to adjust to a world which isn't overwhelmed in constant warfare, he's unaware that an enemy soldier has been blasted back and is tracking him. Winning that one got him a credit inserted into the screen crawl of the video release.
Message: Posted by: MobilityBundle (May 25, 2011 10:44AM)
It's an interesting distinction, Ed, between effect and method. I'm not sure it's a meaningful distinction in patent law, however.

Consider, for example, the ambitious card routine. The effect is that the card keeps coming to the top. The methods can vary wildly, from simple controls to elaborate gimmicks. But if I'm writing a patent for the ambitious card routine, and if I were being aggressive in terms of what I wanted to patent, I could describe the steps like this:

1. Have a spectator select a card;

2. Have the spectator return the card to the deck;

3. Secretly move the selected card to a known location in the deck; and

4. Display the selected card as apparently on top of the deck.

(To be sure, this is somewhat informal language, but you get the idea.)

If I recognize and describe in my patent application that there are a lot of ways to do 3 and 4, then the protection I might get is greater than the ways I explicitly list. I also get protection on "equivalent" methods. Technically, it's not patenting the effect, but it's patenting a WHOLE lot of methods. For example, if I describe all kinds of sleights to do steps 3 or 4, a gimmick probably wouldn't be considered "equivalent," but many other sleights might be.
Message: Posted by: Tom Cutts (May 25, 2011 12:02PM)
[quote]
On 2011-05-25 08:56, gdw wrote:
Tom, apples and oranges.
[/quote]Maybe so, but it is YOU who made the comparison.
Message: Posted by: gdw (May 25, 2011 12:40PM)
[quote]
On 2011-05-25 13:02, Tom Cutts wrote:
[quote]
On 2011-05-25 08:56, gdw wrote:
Tom, apples and oranges.
[/quote]Maybe so, but it is YOU who made the comparison.
[/quote]

Not quite the comparison I was making Tom, though I can see the confusion.

As for the idea of replicating an effect (the perceived performance) with different methods (tools and arrangement,) how is that different than performing the same, or similar song but with different instruments, or musical arrangement?

I don't see how that would prevent the "effect" from being protected the way the song is.
Message: Posted by: Tom Cutts (May 25, 2011 04:22PM)
Methods in magic = techniques in music.

Instruments in music = props in magic.
Message: Posted by: gdw (May 25, 2011 05:24PM)
[quote]
On 2011-05-25 17:22, Tom Cutts wrote:
Methods in magic = techniques in music.

Instruments in music = props in magic.
[/quote]

Your point?
You can play the same song with different technique.

Also, if you change instruments, you'll be using different techniques.

Either way, you can change the musical method equivalent, and still be playing the same song, same as, when changing a method, you can still be creating the same effect.
Message: Posted by: Tom Cutts (May 25, 2011 06:03PM)
[quote]
On 2011-05-25 18:24, gdw wrote:
You can play the same song with different technique.[/quote]
Your Point?

[quote]Also, if you change instruments, you'll be using different techniques.[/quote] Not necessarily.

[quote]Either way, you can change the musical method equivalent, and still be playing the same song, same as, when changing a method, you can still be creating the same effect.
[/quote]Yup, and it hasn't crippled musical creation.
Message: Posted by: gdw (May 25, 2011 07:37PM)
[quote]
On 2011-05-25 19:03, Tom Cutts wrote:
[quote]
On 2011-05-25 18:24, gdw wrote:
You can play the same song with different technique.[/quote]
Your Point?
[/quote]
My point is that it's the same as how you can change the method and perform the same effect.


[quote]
On 2011-05-25 19:03, Tom Cutts wrote:
[quote]Also, if you change instruments, you'll be using different techniques.[/quote] Not necessarily.
[/quote]

Tom, I'm guessing you've never played any (at least not ore than one) instrument.

[quote]
On 2011-05-25 19:03, Tom Cutts wrote:
[quote]Either way, you can change the musical method equivalent, and still be playing the same song, same as, when changing a method, you can still be creating the same effect.
[/quote]Yup, and it hasn't crippled musical creation.
[/quote]

First, that wasn't what that comparison was about. It had nothing to do with the "crippling" of music creation. The comparison had to do explicitly with the idea of "effects" being, hypothetically, protected the same way a song was.

A separate point was made about how such protection, in magic, would drastically limit creativity, as magic is a highly derivative art form, far more so that music, which would be why you bringing the notion of different techniques used to perform the same song/effects and a restriction therein being "crippling" for music vs magic is missing (both) point(s).
Message: Posted by: Tom Cutts (May 26, 2011 12:33AM)
[quote]
On 2011-05-25 20:37, gdw wrote:
Tom, I'm guessing you've never played any (at least not ore than one) instrument.
[/quote]Much like this topic, you couldn't be more wrong. So much so that your statement:

[quote]magic is a highly derivative art form
[/quote] only exemplifies your ignorance further. Magic is derivative because if has been allow to be. Stopping that option will NOT stop the creation of magic routines and effects. It will only redirect it toward more original pursuits.

I will repeat, music is composed of the same very few notes, yet it's artistic variation and expression is ever expanding. Magic would be very much the same, if not for the ill minded who take the position that protection of true intellectual property will grind creativity to a halt.
Message: Posted by: gdw (May 26, 2011 03:34PM)
Tom, it wasn't a "statement," it was, as the wording suggests, a "guess."

And Tom, on the instruments, we are probably just talking past eachother. Unless you are talking going from a piano to an electric keyboard, the technique on uses to play each instrument is different.
Technically, if the musician is more than just mildly proficient, then even going from piano to electric keyboard they will be using (if only slightly) different technique.

As for the rest, though plenty of creativity can come from restrictions, it is negligible, particularly when looking at magic, compared to the amount created through the variations of different effects.

Or would you prefer there be only one cups and balls routine?
Ok, bad example as if there were going to be ANY effect in public domain by now, it would be the cups and balls ;)
Message: Posted by: Tom Cutts (May 27, 2011 01:36AM)
Wow, you just keep on steppin'.

Creation and creativity are not the same. Lots of pointless derivation has been "created" in magic, but far less creativity has come to market. I, for one, would love to see the pointless derivative magic go by the waste side so that meaningful advancements can be given the light they deserve.

Feel free to hide behind your grossley misinformed "guess". It is obvious how off base your statement, oops guess, was. But then I actually know which instruments I play. I don't have to make misguided guesses. But it wasn't really a guess. It is plain to see by most that it was a presumption... And a completely off target one at that.

As to playing instruments, the comments you have made (as opposed to a WAG) lead me to consider that you, in fact, probably play none. If that is the case, nothing you have to say on the matter carries any weight.
Message: Posted by: gdw (May 27, 2011 06:43AM)
Tom, you are quite unbelievable.
Message: Posted by: ed rhodes (May 27, 2011 10:28PM)
[quote]
On 2011-05-25 13:40, gdw wrote:
[quote]
On 2011-05-25 13:02, Tom Cutts wrote:
[quote]
On 2011-05-25 08:56, gdw wrote:
Tom, apples and oranges.
[/quote]Maybe so, but it is YOU who made the comparison.
[/quote]

Not quite the comparison I was making Tom, though I can see the confusion.

As for the idea of replicating an effect (the perceived performance) with different methods (tools and arrangement,) how is that different than performing the same, or similar song but with different instruments, or musical arrangement?

I don't see how that would prevent the "effect" from being protected the way the song is.
[/quote]

It is the specific combination of notes that are protected, no matter what instruments you use to recreate them.
As far as "similar," "Animaniacs" lived off of this.

I don't know why she's dubbing over this, but this was originally Bernadette Peters doing a parody of "Les Miserables"

http://www.youtube.com/watch?v=LeJc-J_jUK8

There's another one that I can't find where they parodied Andrew Lloyd Webber in general creating something called "Cats of Phantom Blvd."

Here's a parody of Disney's "Beauty & The Beast."

http://www.youtube.com/watch?v=JnrfUUZlNFQ&feature=related
Message: Posted by: MobilityBundle (May 28, 2011 01:31AM)
Parodies are kind of their own special case. The "parody defense" is a special case of the fair use defense, and not a head-on defense of the parody being not sufficiently similar to the copyrighted work. In fact, in all parody cases I can think of, it's pretty much conceded that the parody is in fact a derivative work of the copyrighted material.

True parodies are permissible derivative works. So how does one decide between a knock-off and a "true" parody? If the putative parody at least in part is a commentary on the original work, then that goes a long way. Also, if the work is "transformative" -- meaning it takes the original work and produces something distinct, while still retaining elements of the original -- then that's permissible as well. At least arguably, the Animaniacs links above are sufficiently transformative of the original works. Or who knows, maybe the Animaniacs guys payed licenses to use some of the stuff they use.
Message: Posted by: gdw (May 28, 2011 06:27AM)
And Ed, the "similar" idea, in non fair use, has been established with cases like the previously mentioned George Harrison case, as well as Ice Ice Baby/Under Pressure.