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Topic: What's OK and what's not?
Message: Posted by: Sealegs (Oct 1, 2011 06:35PM)
In general terms, (or specific terms if it's easier to give examples) is there a consensus on what props, gimmicks, accessories, etc one can ethically make for oneself and what one can't or shouldn't?
Message: Posted by: Leland Stone (Oct 1, 2011 09:24PM)
Welcome to a discussion on Intellectual Property rights that has raged a very, very long time.

"Hey, look at that guy over there moving a heavy load with that log, kinda like he's got himself a roller of some kind. Too bad he wants to sell it to me for so many clams, which is way more than I can (or want to) pay. Say, I wonder if I just can whittle one myself?"

Don't know about a consensus; you'll probably get as many opinions as replies.

Leland
Message: Posted by: Ekuth (Oct 1, 2011 10:08PM)
If you can make it, you can use it.
Message: Posted by: MuleePete (Oct 2, 2011 01:42AM)
If this can stay an intelligent discussion with polite discourse it will be an interesting thread.

For myself, I can build quite well, but am hesitant to invade anothers terriory. Mainly because I am not adding anything new. Currently I stick to things I have found in older books, Science & Mechanics Magic issue, and the like. In addition I have made several effects with plans bought from Magic Nook.

I have made a scale model of Cube Zag and have figured out the workings, but am not sure if it would be ethical to make a full size one, because of several threads on the subject.

I have no plans of building things for sale, there are already illusion builders of greater talent than I will ever posess. But I enjoy the challange and working with my hands.

I must say, over all I agree with Ekuth. Just don't make crap.

Pete
Message: Posted by: gimpy2 (Oct 2, 2011 08:36AM)
Pete,

I agree a polite discussion would be refreshing.I think I have read every thread on this subject over the past 3 years. The threads always seem to focus on what some disagree about. It would be helpful to outline what most agree on instead. Not sure if this is possible.

For instance you hear terms like public domain.Is there a definition of this term that most would agree on ?
Message: Posted by: ringmaster (Oct 2, 2011 09:53AM)
Google is your friend.
http://www.publicdomainsherpa.com/definition-of-public-domain.html
Message: Posted by: gimpy2 (Oct 2, 2011 01:20PM)
Ringmaster,

If the Google definition were to be used in magic it seems to me it would offer very little protection. The way I read this it seems that it would protect the written instructions but not....Say the magic prop that went with it.

So I guess what I should have asked... Is there a special definition to when and how a magic prop becomes public domain that most would agree on?
Message: Posted by: MuleePete (Oct 2, 2011 08:22PM)
Good to hear from you Gimpy.

Lets see how lightly I can tread here. And this is just a thought on my part.

"If you can make it, you can use it."

A magician sees a effect and routine, and is inspired to make and perform it themselves, pehaps develop something different from what they originaly saw. OR

A magacian reads an effect in either an 17th, 18th, 19th, 20th century or more current book, and likewise is inspired to make and perform it themselves, perhaps with something different.

Either way they, had to figure how the effect worked and devote R&D time or money to create the effect they saw or read. They honestly worked to develop the effect,though it is not their original idea. They still paid the dues.

"If you can make it, you can use it." BUT NOT SELL IT. The buyer has not paid the dues by devoting the R&D time or money. If they must buy an effect let it be from the "originator".

Logicly, it can be argued there is nothing new under the sun. Todays illusions, effects, tricks, have all derived from some ancient source. But for those unable, or unwilling to make their props, purhases should be made from the current recognized source, no matter how enticing the price.

If I can work in metal and make my own rings, is that allowed?
If I can work in wood and make my own Dean style box, is that allowed?
Square Circle?
Card Castle?
Dagger Chest?
Cups & Balls?
Chop Cup?

I cannot spin aluminum, therefore bought my Multiplying Bottles, but tooled my own leather tubes. Allowed?

"If you can make it, you can use it." BUT NOT SELL IT.

Pete

PS- Nothing wrong in giving credit and thanks, to whom you gained the insperation from.

Pete
Message: Posted by: thegreatnippulini (Oct 3, 2011 06:52AM)
[quote]
On 2011-10-02 21:22, MuleePete wrote:
"If you can make it, you can use it." BUT NOT SELL IT.
[/quote]

I think you hit the nail on the head. I fabricated a fully metal life sized replica of a very famous cartoon [url=http://greatnippulini.com/robots/bender.html]robot[/url]. He holds a bottle of beer in one hand and a big metal cigar in the other. He is a nice addition to my robot collection in my backyard. I decided to make another one for sale. After putting the final touches on the second piece, I listed it on Etsy.com and used the name of the robot in the listing. Not more than 3 months went by and my listing (and other similar) was yanked by the site after a threatening letter from lawyers at FOX citing "intellectual property" and copyright violation. Apparently it's fine and dandy to make it, you just run into problems when you try to sell it (especially if you use copyright and/or brand names).
Message: Posted by: billappleton (Oct 3, 2011 08:47AM)
The legal side is pretty simple. There is copyright, trademark, and patent law. Assuming there is no other contract involved between the parties...

Copyright is the simplest and most effective principle here: you can't use the images, videos, words, or names that someone else produced. Very similar reproductions can likewise be in violation of copyright, but at some point this requires a jury and/or judge to decide.

Copyrights are supposed to cover the "life" of the author, or about 70 years, although this keeps changing...

Magicians often have stronger ethical guidelines than the law requires. This seem to have some historical and cultural origin.

For example I do not know if "performance rights" are covered by copyright. Seems like they should be, this is a collected set of motions, images, and words. But a claim to make of infringement would be difficult here.

The idea of "manufacturing rights" may also be just the transfer of a copyright, or a contract not to pursue copyright claims.

In the end it may be an "honor system" that enforces most of this. Isn't that nice?
Message: Posted by: ClintonMagus (Oct 3, 2011 08:51AM)
My thoughts on this (in a word, so to speak):

If I can work in metal and make my own rings, is that allowed? - YES
If I can work in wood and make my own Dean style box, is that allowed? - WITH DEAN'S PERMISSION (I'm not sure of the history of the actual box, but combining the elements into a routine was Dean's idea.)
Square Circle? - YES
Card Castle? - DON'T KNOW ENOUGH ABOUT THE WORKINGS OF THIS TO HAVE AN OPINION
Dagger Chest? - YES
Cups & Balls? - YES
Chop Cup? - YES

I cannot spin aluminum, therefore bought my Multiplying Bottles, but tooled my own leather tubes. Allowed? - YES

I have made a scale model of Cube Zag and have figured out the workings, but am not sure if it would be ethical to make a full size one... - NO

I would venture a guess that none of the items marked "YES" above would cause any ethics concerns in the magic community. They have all been around, seemingly, since the beginning of magic, and they can be found in hundreds of magic books through the years. Even rip-off manufacturers can make these with no outcry from the "community".

One more thing - I have an original Chalet Mini Kub Zag that I purchased from the previous owner. It is legit, but when I got it, the sides and base were warped and dry rotted. The frame welds were broken. The metal was rusted. Because of this, I ended up essentially rebuilding the illusion. Everything is exactly the same as the original, and Dan Wolfe even made me a replacement set of tubes. That being said, if I ever sell this, I will represent it as what it is - an original Chalet MKZ, extensively rebuilt by me.
Message: Posted by: Sealegs (Oct 3, 2011 01:25PM)
ClintonMagus;

You have given a yes and no position on the various items that have cropped up in this thread. From what you've written I gather that your reasoning behind the Yes's, being deemed to be okay to make yourself is that they have been around for years and making them wouldn't cause any outcry from the 'community'.

This seems reasonable to me but for the sake of clarity and making a point... how much time needs to pass and how little fuss has to be heard from the community for it to be ok or not ok? This sounds, and I admit is, partially flippant, but there is a valid point here.

That point is; while your suggested list of 'ok' and 'not ok' seems reasonable, I can't see the firm basis of the principles on which those decisions are arrived at. 'Time' and 'outcry from the community', don't seem to be particularly definitive positions unlesss a time period and amount of community outcry is quantified. (maybe my outcry wouldn't carry as much weight as a TV name for instance.. but why shouldn't it?)

But if we're looking to form a consensus I'd certainly be included in those going along with those mentioned in your post. I think though that without a position based on principle there will be all manner of other things that will fall into a much more grey and less consensus friendly area.

For example; is it ok to make your own Zig Zag? Its been around for ages, the inventor is no longer with us, it's been made and sold by many and I'd even venture that to a large extent, to use your own words, "even rip-off manufacturers can make these with no outcry from the "community".
Message: Posted by: ClintonMagus (Oct 3, 2011 01:42PM)
I don't believe you will ever get a consensus, and I can't give you a time frame, although thousands of years (in the case of the Linking Rings) seems pretty safe. :P I am just telling you what I think would be considered "public domain", and I am pretty picky in what I define as such. For example, I still don't think it is ethical to build and perform ZIg Zag without being an owner of The Magic of Robert Harbin, Modern Art without owning the Steinmeyer book, or even Cardiographic without owning Martin Lewis's book/DVD, though there are hundreds (maybe thousands) of people who do not share my opinion. Owning Paul Osborne's plans for "Zig Zag, Interlude, or Mini Kub Zag does not make building them any more permissible.

You may not hear much "fuss" from the magic community, but that doesn't necessarily make it okay. After all, these illusions do not belong to the "magic community", but to their creators and their designees.
Message: Posted by: billappleton (Oct 3, 2011 01:43PM)
The standard for copyright is 70 years, or whatever, congress keeps changing the number, but the idea is protection for the lifetime of the artist.

Also I would add if there doen not appear to be a copyright claim then an item could be reproduced as well.

One issue with magic is that most effects are a combination of words, images, props, etc. combined in a performance.

So lets say I just invented the Zombie, and this had never been seen before. Well floating balls have been around for a while, and things under a cloth, and the use of gimmicks, etc. So the individual parts of this might not be new. But combined together this would be a new trick and (i think) worthy of copyright protection. But by far my best course of action would be to name the trick something clever (like Zombie) and through the use in commerce end up as the trademark holder. Now THAT can be defended.
Message: Posted by: MuleePete (Oct 3, 2011 01:48PM)
I am enjoying this exchange very much, and would like to offer this into the disscussion.

The Fox Sisters and Davenport Brothers devised ways to manifest mysterious "goings on" in while tied and placed in a large cabnet.

Sefalaljia, brilliantly conceived by Stewart James, used a 7x7x14 cabnet with holes in the side, front curtin and top,to perform effects already known and written about. Performance objective was to manifest mysterious "goings on" in a small size. Our beloved Tabman recreated several styles of this prop.

Dean Dill, himself a briliant inovater, constructed a beautiful 7x7x7 box, with holes in the side covered by curtins, hinged front cover and hinged round opening on top. Also used to perform effects already known and written about, though the "spirit" element is not stressed. Never the less, it is a wonderful routine and prop.

Professor Spellbinder has given us his take on the Sefalaljia routine, using materials obtained in a Dollar Store to manifest the strange happenings, as well as providing additions and variations of his own. He continues with the "spirit" theme.

I have no doubt, the basic concept goes back even further than the Fox Sisters.

There is no need for my asking questions at this point. You can see where I am going with this.

I leave it to you to comment on what I have presented, as your intelect guides. I await to read, with great relish, other opions so as to continue a pleasant discussion.

Pete
Message: Posted by: billappleton (Oct 3, 2011 02:35PM)
Hi Pete,

Interesting post. As you probably know you can't patent a "basic concept," a principle, or an algorithm. You must patent a mechanism, like the part of a machine. The patent won't be granted if the examiner thinks the machine is obvious to people well versed in your particular field, either. A patent discloses a secret in return for protection and potential licensing revenue.

So the track of innovation you describe definitely has people who are inspiring each other through time with a particular idea. I don't know the magical ethics, but this happens all the time in the real world and is afforded little legal protection.
Message: Posted by: MuleePete (Oct 3, 2011 04:06PM)
Bill, I must admit my ignorance of patent, copyright and trademark, though I have tried to educate myself.

I try to be guided more by 'right' and 'wrong' as I have learned from the society I live in. Which in itself is confusing, as currently doing what is right is shunned and doing wrong is glorified. Again based on my upbrings and era, ie 1955 to date.

Copyright, patent,and trademark, as are most laws, are necessary only because individuals either cannot or will not, control themselves. Note all the regulations and laws in the country today.

Rail splits seem to be needed when folks want to know exaclty to what extent they can push a point. How many steps can I take on the Sabbeth without breaking it, and so forth.

Perhaps this is delving too deep in relationship to Sealegs question.

At this point in the decussion, I agree with Ekuth, unless an active patent, copyright or trademark is present.

ClintonMagus-Very good example of obtaing permission to build and use, thru the purchase of the books.

Pete
Message: Posted by: Wizard of Oz (Oct 3, 2011 07:22PM)
This thread - as probably expected - has quickly become passionate and energized. And, with good reason. Any creator wants to protect her or his creation.

Yet, while I appreciate the legal descriptions and classifications of idea ownership (patent, copyright and trademark), do those realistically apply to our little neck of the creative woods? Magicians are a relatively small group, and many, if not most inventors or innovators in magic don't have the capital, time, or energy to back-up their creations in a court of law for such a nominal return. It's just simply unrealistic.

So doesn't this come down to us policing ourselves? I'm not offering solutions here, because it's still a complex problem. I'm just saying let's leave the big picture thinking out of this. I doubt any magic creator is going to go to Washington to fight for a new torn and restored card. This is about getting our own house in order.
Message: Posted by: Michael Baker (Oct 3, 2011 11:28PM)
[quote]
On 2011-10-03 20:22, Wizard of Oz wrote:

So doesn't this come down to us policing ourselves? ... This is about getting our own house in order.
[/quote]
I think this should apply to both sides. Granted, there are some creators who are being maligned by others, but I also think there are some so-called "owners of rights" who are perhaps blowing a horn that is not really theirs to blow.

It seems that small details are often the focus of turf wars. Unfortunately, clout is a source of power, and potential abuse of it. Unless some sensibilities are allowed to reign, this entire industry will knot itself in a froth of emotions, while calling it "ethics".

Adding embellishments does not make one the creator of a new effect or prop. A false panel is the same whether it is on the bottom, the top, the sides, or anywhere else. Developing an effect that can be duplicated by other means does not entitle one to exclusive rights to the effect. A cap in a bottle, or a card in a wallet is nothing more than that.

Legal issues are black and white... at least to the point that attorneys and judges will let it be without playing idiotic games of stretching loopholes. Ethics on the other hand, is a game of belief, like religion. History has proven time and again what can happen when groups with differing views try to establish what is right.

That being said, it is my opinion that copyists, rip-off artists, pirates, second bananas, or whatever name we might want to call them, are only detrimental when they do not raise the bar. Once they do, they are respectable virtues to the art of magic.
Message: Posted by: MuleePete (Oct 4, 2011 12:34AM)
Hello Michael, good to hear from you on this.

I would like to ask for a bit of clarification as to what is 'raising the bar' to better understand your thoughts on this.

How would I accomplish this for example?

I mean no disrespect to Dean Dill, acknowledging fully Deans Box is completely his invention, what would have to be done for someone else to "improve" it so as to be something else and accepted as such? I use this as an example only because it seems easy to comprehend in relation to this thread. Substitute another prop if you would rather.

Pete
Message: Posted by: Michael Baker (Oct 4, 2011 07:36AM)
I really did not want to get involved here because there is going to be more gray area than a comparison of state by state definitions of common law marriage. In short, I think this is a case by case situation.

I am not going to speak at this time to any specific items. The reason is, I think there are far too many hairs being split (not speaking about this thread) in an attempt to define what is what. Partially, this is the result of decades of the magic industry imploding on itself. More and more effort is expended selling to and trying to impress other magicians, than to the non-magician public. Turf wars are generally the most violent and focused on petty issues when the population outgrows its boundaries. It's mighty crowded in here, isn't it?

I think that "raising the bar" should at least be a significant result of added improvements (thinking of the example of Growth of Flowers gradually degraded in the name of "improvement" into Botania, as pointed out by Tommy Wonder). But then, this is surely another gray area. One man's trash and all that. I might not consider a blue box with yellow polka dots to be an improvement over one of polished Walnut. But if I was a clown, my thinking might be different.
Message: Posted by: Dr_J_Ayala (Oct 4, 2011 09:13AM)
I also was not going to get involved in this thread, but as a performer that made my living by being an illusionist at one point (and from time to time, helping a well-known builder with building illusions as well), I figured I would throw in a few comments.

Michael really hit the nail on the head, so to speak. There are many gray areas in things like this, and the laws to vary from state to state. When you purchase an illusion from a licensed/official builder, the price includes performance rights for that particular illusion. Those rights are protected as part of the trademark in some cases, and if there are particular words/actions/etc., under copyright law. When I was still doing my illusion shows, I wanted to build most of my own. I had contacted other builders and work with them to come up with an agreeable fee that I would pay so that I could build my own version of protected illusions and have the right to perform them. It worked just fine and it saved a lot of money. On the other end of this, some of the Osborne illusion plans that were put into books were not his to publish, but it happened anyway.

As far as illusions like Zig-Zag, the Sword Basket and Find the Lady, they have been around so long that nobody holds exclusive rights to them. In some cases, a specific mechanism or way of doing it may be patented and protected. As Michael said, a trap on a box is a trap on a box and it does not matter where you put it. If it looks like a rose and smells like a rose...

As far as taking an effect and "raising the bar" with it - again, as Michael said, is something that should significantly improve the working of it. If I were to take a Card To Wallet and add a pocket or compartment to the wallet - that is not significant. If I were to change the way it worked entirely (eliminating a guide or any p***ing work), that is significant. If I were to take the Modern Art illusion and change the shape of the doors and the direction in which the sections slide, that is not significant. If I were to build a Modern Art and make it where it can be done with no cover, that is significant. Of course, for things such as Modern Art, which is a protected piece, you should have express permission to make and perform it. Either way, credit for the inspiration and/or the original handling should still be given where it is due. That is ethics at the basic level.

As far as the gray areas are concerned, I have noted that in some places in this world, you will get a patent on something just because you have applied for it and one (a patent) did not already exist for whatever it is - even though the item was already in existence for a long time. As far as copying a protected piece of intellectual property, there are far too many gray areas in regards to the legal and moral aspects of it. Personally, I know what I would and would not/should not do - that does not mean others follow the same line of thought.

This is my take on these aspects and I hope I was clear enough to be understood.
Message: Posted by: gimpy2 (Oct 4, 2011 09:32AM)
Pete,

Heres a something on Deans type box.

A few years back an idea struck me of a simple box to do ring and rope effects.I built the proto type with no moving parts and some secrets added to the outside of the box. The box had no bottom so you could tip the box and show the inside and put one hand inside. Two small holes on each side and a odd shape holes in the top so you could do sveral rope and ring effects.It could also double as a chop cup and at least a dozen other effects. However the strongest effects were pretty much like a deans box.

I showed it to several magicians. A few thought it was just to close and might be called a rip off. I don't wish to take that chance so it was put on the shelf for good.

A little over a year ago I met up with a well known magic builder that I have great respect for. I told him of the prop and came to find out he had come up with the exact same idea. The only difference was his had a arrow head shape cut in the top mine was a pony shoe shape. He came to the same conclusion,that the prop was just to close to the grey area to move forward.
Message: Posted by: MuleePete (Oct 4, 2011 01:15PM)
I'd like to thank Sealegs for starting this thread. For me it has been a thought provoking and plesant exchange of opinions from folks I respect. Thank you all for some excellent guidance.

Realistically, I doubt I will ever be a "innovator". And I am not interested performing large illousions. That still leaves a huge field of avaliable 'public domain' to work from. The Learned Pig, and Lybrary.com has provided that.

See you at the next thread.

Pete
Message: Posted by: leapinglizards (Oct 4, 2011 06:07PM)
Utility Patents, where they exist, protect an idea for 20 years. The Inventor of an ORIGINAL idea can patent that idea. To do so, you must prove originality and usefullness. The invention must not be obvious.

Design patents (Like the expired patent on the Origami Box) ONLY protect the design of a thing, the look- not what it does or how it works.

If you get a utility patent on an item, you have 20 years of exclusivity and then it is public domain BUT prior to that it is public record. This is why one can view the entire mechanics of many famous illusions on the US patent website. So, while I am not advocating stealing someone's ideas in any way shape or form, I do think that people need to be honest with themelves and their claims (And sometimes threats of legal action)when they start talking about claiming exclusive "whatever" rights to something that is 20 years or more old.

Currently Copyrights last the life of the author PLUS 70 years after their death in the case of anything copyright AFTER 1978 in the USA. This covers books, magazines, audio and (I believe) video but only the specific expression of the ideas- NOT the ideas themselves. http://copyright.cornell.edu/resources/publicdomain.cfm shows you the sliding scale of what is public domain thereafter.

As I have said many times, the magic business is a gentleman's business (And Ladies- no sexism intended) and as such we do largely police our own. Sometimes I think we BULLY our own out of a false understanding of the laws involved, though in those cases I would say the intent there is still trying to protect the honor os someone or other- not hostility.