Another thread posted the fact that Creative Illusions is no longer in business ( this I CANNOT verify at this time).
This has spawned a question.
At what point do ideas/effects become Public Domain ( some say 25 years ) and does the fact that a company fails accelerate the Public Domain Rights?
Clearly the first step is to contact the Original Creator.
1)What if you cannot find him/her?
2)What if he/she has passed away with no declaration of rights?
3) What if the Creator simply has no interest in dealing with it.
There are so many great ideas that get lost in time. It would be a shame if they were not kept alive in some ethical way.
Just wondering,
Chance

Interesting topic there Chance, I honestly don't know but wouldn't the rights go to the person or company that might "buy" the company outright if a company ever did that?

Robert Long

The estate would own the rights once a inventor dies. It becomes common domain when the effect can no longer be controlled and becomes common in its existence.
Examples are Smoke chamber and Impaled
Smoke Chamber was controled by Copperfield.
Impaled Ken Whitaker.

Creative Illusions had a partner in that business and that is Paul Haynes.

I think of Harbin Zig Zag and his book in where he protects it, you would think that its the biggest rip off illusion in history as professional builder in the 60's and 70's built them and if that's the case we never stop this problem.

Chance,

The fact is most magic businesses are home spun privately owned companies. Things disappear when the owner dies, unless there are sons or daughters who keep the wheels turning like Goshman and more recently Morrissey.

A corporation may have more legal recourse but unfortunately there isn't a contract written that can't be altered by a "good" lawyer. In the end it comes down to, the person with the most money to fight it, wins.

That is why it is harder to rip off from a well known illusionist. Harder, but not impossible. And why it is so easy for the smaller tricks where a long drawn out lawsuit just isn't practical. Examples are Professor's Nightmare, Matrix, and Chop Cup.

Chance; I am not a lawyer and in the case you described, even a lawyer is of no value since we are now dealing in ethics (no slight intended).

I would suggest that if you wished to manufacture an effect or expand on an existing idea that you know to have been produced by someone else AND had exhausted all the efforts you mentioned to locate and obtain rights, then proceed as follows:

1. Include a history of the effect as best you can research it, and give credit as necessary.
2. Set aside a percentage of profits equal to a fair royalty in an escrow account for future payment should a legitimate claim arise. This at least would be evidence of good faith on your part.
3. Have legal documentation of your intent filed and recorded.

How long would the escrow be maintained? I don't know, but at least for a reasonable period of time that the effect continues to be in demand and is known to exist within the magic community.

I agree that there are many great ideas that need to be resurrected by new thinkers such as you. It would be tragic if these ideas never saw the light of a new day.

Great input from all above.
Doug, your advice is excellent. The escrow idea is perfect as it proves that I have no "scoundrel" intent. I was posing the question for the purpose of getting some ideas to handle the situation IF it arises. At the moment, nothing is at hand but I have seen many effects that tickled my mental taste buds and was anticipating this problem.
I am in no lack of original material but find myself chomping at the bit to expand on existing ideas that I feel were never fully developed.
Thanks again and I truly appreciate the sound advice.
Chance

First after making it clear that I do not practice law, I have been in the entertainment business for well over forty years and have some experience with intellectual properties in that context. In the music business there is a practice, which I personally would like to see in the magic illusion industry.

The term is compulsory license. It is through the U.S. Library of Congress and relates to copyrights. In the broadest terms, it reserves the recording rights to a piece of music to the composer or copyright owner until it is once recorded for public sale.

Thereafter, anyone can record the piece but they must pay a specified royalty rate for using the property. The rate is stated in the compulsory license. Obviously, it is to the advantage of subsequent recording users to negotiate with the copyright owners for a better deal. Otherwise, the world deals with a known price for using the intellectual property. Because the price is known, even if the copyright owner is not identified, funds can be accumulated for the owner and the new user is released from obtaining a negotiated license.

It does put a top on royalties. It does reserve first recording rights to the creators and owners. It does provide a method for dealing with many of the other problems that arise with use and ownership of intellectual properties. In real life copyright owners die, change names, sell rights, go bankrupt, get sued, go to nursing homes, disappear, or become unavailable for other reasons. Frequently in the recording business the same piece of music may have several names and the name of a piece of music is not unique. There is no limit to how many different pieces can be copyrighted with the same name. There are situations in which it is learned subsequently that there was a pre-existing copyright for the same piece registered to another owner. It does not void the property owners’ rights but it does remove the hassles of locating the owner who may never be identified. Life goes on. Royalties are set aside and new products are produced.

Magic is not a perfect fit because usually there is no copyright or other formal claim to rights. But there should be a workable system available even if the most creative group of professionals on earth has to create it. Under the best of intentions, it is sometimes impossible for a producer to identify who would be the proper owner to pay and no base line for what royalty is reasonable. Even if one pays a represented owner for production rights, there is no absolute protection from having to defend against claims from others claiming ownership rights. This is also very unfair. And like in the recording business, how close to another song does one have to be to be the same one protected for license purposes? Multiple people can individually have the same idea without any knowledge of the others. Copyrights primarily establish the date of the unique claim to ownership. Magic needs a system like the recording business that allows and requires royalties to be paid to property owners but also protects those who do pay the royalties from addition claims and false blame for use of the property. Both sides need protection. Both sides have responsibilities that aren’t currently being successfully addressed. This is not a case of good guys and bad guys. It’s just you and me. Until we can define the roles of the good guys, there are none. What really are the rules of this game? Let's agree!

Bob Sanders
Magic By Sander

Tangentally....

The new Patent laws make filing your manifested idea VERY easy and very cheap: $75 gets you started on a Provisional Patent.

You must begin followup to the full Patent procedure within a year, but at least you get to register the thing and establish it as yours. It's an easy start.

Ethics and magic: Slipery Slope, with a large grey area... often like trying to slice up smoke. All the obvious ethical rules seem to be full of "Yes, But..."s

There doesn't seem to be many rules, nor censure...but at least the forums are a start at the latter.

The big problem with most of these things is that very few of them are patented. And in the case of magic tricks, it is the patent laws that apply. If something has already been marketed by someone else, you can't patent it. And quite often when you have an idea you think is original, it may have been performed or published by someone in the past.

The knock-off merchants and manufacturers know this. And often they are the ones who have the high powered lawyers to protect them.

The music industry and the motion picture industry are fortunate, because they have a much simpler way of protecting their products. The copyright laws were written with a great deal of input from the people that they protect.

But patent laws are meant to protect processes and physical objects. In order to stimulate technology, congress thought it wise to write the patent laws with a far shorter lifespan than copyright laws to encourage technological development.

Most magicians do not patent their material because they don't know how to, and because the patent papers would reveal the secret. And anyone can look up the patent papers on the internet.

Furthermore, there are some people who believe that any organized effort on the part of magicians to form their own intellectual property protection group would constitute usurpation of the work of the government.

So, what do you do.

The best thing I can recommend is for you to find the original owners of the company and try to purchase the rights to their products, so you will have something that tells everyone else you have done so.

But do your homework, and get it in writing!!!! If you don't have any documentation, you won't have a case.

I suggest you seek a patient attorney to discuss the best path to persue. It will not cost that much for legal advice. In many cases it could be free 1st consultation. Call your bar association for a list of attorneys in the field.

Bill

Chance -
I am not an attorney -- but wrote a book and several chapters for others on licensing, patents, trademarks and copyrite while I was in an industry where it was critical.

You, sir, are in a unique position in the industry on your goods that you may have several ways of protecting them because of (not in the magic principles) the decoration, dress and style of the props.

The constitutional provision for TRADEMARK registration f9ollows patent law. Products AND THE WAY THEY LOOK may be trademarked -- and the trademark defended. Trademark dress and items may be licensed for sale or sold (rented) with non transferable rights to use.

Additionally -- the words and LOOK of props may be COPYRIGHTED as stage dress.

It is possible -- that if a defunct creator (corporation/person) had gained either of these rights may apply -- as may specific words in a routine be protected. Bit the odds are, legally, that the principle is NOT covered by a patent (as is Copperfield's flying and previous patents on the Foy mechanisms.) And then, too, patents expire! Look at the wording in the constitution of the US on why patents exist !!

Ethics/Magicians? Oxymoron? Trial lawyers love this stuff -- and recent trademark law changes (in my opinion bought and paid for by Disney and Sony) passed by congress to protect the mouse -- may work to the benefit of magician/inmventors wise enough to register and rich enough to enforce.

You are right here gregg. I always hear that a patent is to expensive for a single trick. I would not agree with that. A patent for a trick/illusion if obtainable should be available for about $3000 (or even a little less if you do some of the research yourself). The real problem is the enforcement of the patent and that's were the real cost come in.
So after all while the patent is within reach the enforcement might not be.
Another problem will be knock offs from India (or similar country). What good does it do you if you enforce the patent and then try to collect a judgement (if you get one) to find that the person you sued does have nothing.

I am a patent lawyer. No disrespect meant to any of the above posters, some have posted solid recommendations that should work, but in the case of tricks, just don't. They'd work best when one is trying to protect an object of art, and although I agree that some tricks really are a novel piece of art, the law doesn't agree.
Copyright almost certainly doesn't play a part in protecting tricks. One would think that it does, but there is nothing in copyright law that would prevent me from divulging the secret behind any trick I can.
Patents are nice, but pricey, and there are issues of prior art and obviousness that would be very hard to overcome. It can be done, but in many cases, the resulting patent would be so narrow that it the claims could be easily avoided. Not to mention the public domain problem and enforcement.
I have a few posts in the "magic law" category on my website (http://odonnell-law.net/)that I've made user-friendly.
My contact information is on my website if you wish to contact me directly.

Steve

Dr. Steven L. O'Donnell, Ph.D., Esq.
1935 Fruitville Pike #190
Lancaster, PA 17601
717-575-3528
steve@odonnell-law.net
http://www.odonnell-law.net/

Wolf---you are right on!--My friend invented a baby bottle with a hole in it called the ANSA---it allows babies to keep hold of their bottle. He started his own factory made a million bucks literally---but spent half of his money trying to defend his patent from Pacific rim knock offs--first you have to find them---and by then they have moved and shipped another zillion units.The big cost is DEFENDING your patent.-----cheers!----Jimo

To all above,
Thanks so much for the input. The point has kind of strayed but still of value. I fully agree with Wolfgang and Dr. Steven L. O'Donnell. The patent game becomes just that...an EXPENSIVE frustrating game.
Well, I have a ton of fresh original ideas I will just keep developing and just pursue recreating/modifying the effects in which I get direct permission from the Creators.
Thanks again,
Chance

Uhhm. sorry, I added in my email sig to my previous post for contact info, in case anyone had specific questions. Outside of formal speaking engagements, I go by Steve (or Blitzen). I hope I didn't sound like an ass. I am an ass, but that wasn't the effect I was going for.

The intellectual property protection of magic is a hobby of mine. Copyright and patents don't work the way magicians would like. Trade secrets are better, but still probably don't work the way we'd like. I've got some nebulous ideas on protecting tricks that I need to fully develop and research. So far my research hasn't turned up anything to counter them, but I'm still looking. Without giving away anything, my idea will require a drastic departure from how magic is currently marketed.

Steve