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MikeJRogers Veteran user Australia 354 Posts |
Could someone please tell me how I would obtain rights for my own original illusions? I take it you need to have the plans drawn up and copyrighted, then you have the 'rights' document drawn up by a lawyer? I really don't know anything about this sort of thing so if you can help that would be great.
Thanks and Merry Christmas, Mike.
Mike Rogers Illusion Design - Australia - http://www.mikerogers.com.au
"Nothings impossible, the impossible just takes longer" - Dan Brown novel - - - - - - - - - - - - - - - - - - - - - - - - - - - - |
Marshall Thornside Inner circle chicago 2016 Posts |
You need a patent.
you will remember my name
World's Youngest Illusionista 7th greatest pianist in the world Go Red For Women and Stroke Ambassador www.mai-ling.net |
Chance Wolf Inner circle 2425 Posts |
Mike,
Let me clear this up as quickly as possible. Marshall is a bit off base. You would waste a tremendous amount of money applying for and purchasing a patent. A patent is almost worthless in the world of magic since the rip-offs could care less if you have one. Overall, it is INCREDIBLY expensive and should only be used for something very high end and you better have a lot of money and time to fight it in court. Your idea and performance rights can be protected by a Copyright to some degree. It gives you SOMETHING to show in court and if it PROVES you created it first and the other side has NO PROOF then it will be a sweep. Yes, it is as simple as typing up all details and drawing up basic plans with the workings of the effect. Have a witness sign the papers then mail them back to yourself in a Certified Letter. This will protect your PERFORMANCE RIGHTS and Rights to the idea. Actually, the second you have written ANYTHING and posted it publicly, it WILL hold in court with witnesses to back your claim. There have been many misleading posts in this forum regarding this topic and, recently, the legal system has been leaning far more to the creator’s side. Will any of this stop rip-offs? NO. But it will give you an edge. I just experienced a situation where a well-known company was attempting to "borrow" my style of magic. Little did they know that even a STYLE can be LEGALLY PROTECTED. Rather than go through the legal garbage, I hit the situation HEAD ON! I contacted them directly on the phone and DEMANDED and immediate end to their wrongdoing. Apparently, they decided to be people of good character and stopped all production. The best advice I can give is to nip it in the bud BEFORE the pirates hit the market. This gives them no chance to gain any acceptance by the community or legal leverage on some skewed justification. Here are some books to help you published by NOLO PRESS: "Patent, Copyright & Trademark" by Attorney Stephen Elias "The Copyright Handbook" by Attorney Stephen Fishman I hope this helps Chance
Creator of Wacky Wolf Productions & Fine Collectibles
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MikeJRogers Veteran user Australia 354 Posts |
Thanks for the reply Chance.
So I take it I can write up the performance rights and sign it with a witness and mail it to myself? I thought performance rights were an actual legal document prepared by a lawyer. Do you just state in the performance rights that it gives the holder permission to perform the illusion? That would sell along with the plans if I decided to sell right? Thanks for your help, Mike.
Mike Rogers Illusion Design - Australia - http://www.mikerogers.com.au
"Nothings impossible, the impossible just takes longer" - Dan Brown novel - - - - - - - - - - - - - - - - - - - - - - - - - - - - |
Doolah New user Grand Rapids, MI 5 Posts |
What Chance was talking about is known as a Pauper's copyright (PC). The witness part is good, if it works out to have a witness, but the most important thing is to mail back to yourself, via First Class mail with PROOF OF MAILING (the Postal counterperson can help you with this.) Tape the envelope up, seal it, write with a Sharpie over all the lines so that a judge can see it has never been tampered with.
Next, and this is the real beauty of the PC. You can now discuss this with anyone and if they steal your idea you have a PRIVATE document to back your claim. A Copyright or a Patent is a public document, and like Chance said, is not much good for a proprietary, or use patent. All that is needed is to change one thing and they can get their own use copyright. With a PRIVATE PC, you show up to your Attorney and say, "I have this PC and so and so is now using this after we discussed it. Your Attorney cannot open it unless you let him (don't let him...keep another copy of the contents for him/her). The opposing Attorney's cannot obtain the contents through Discovery. The first person to open the envelope(s) will be the judge/magistrate whose first job is to decide whether or not you have a claim/case. This is powerful, and to your advantage because he can hardly dismiss your case in the early stages. They can and do dismiss copyright infringement cases all the time on technicalities early on. "Burden of proof" is high and the costs of trial are HUGE! The PC is amazingly bullet proof to get you through the first initial phase of a legal proceeding. This will probably not lead to a trial but will get you a settlement offer that you would never have gotten otherwise. The other important thing is to document contacts with people you discuss your plan with. Keep notes. Obtain business cards. Date them. Keep convention programs and show passes from times you have discussed your idea. If you can't document conversations or get an impartial witness, get the person's email address or snail mail address and write them a letter covering the points you discussed. With a little ingenuity they won't even know what you are up to. Save all email and traditional correspondence and periodically mail these back to yourself. If you mail the individual send it out with a proof of mailing and save these receipts. Don't send it Certified or they will consider you hostile or weird. The best thing is that Judges seem to like these PC's. You can really catch a thief with his pants down and Judges like to cut to the chase when it gets down to Intellectual Law disputes. I hope this helps. I've been using these for years. My problem is that my ideas suck and nobody WANTS to steal them LOL! Regards, Doug Doolah |
m.ruetz Veteran user Peoria Arizona, USA 378 Posts |
I think largely the magic community is governed by a set of ethics that some follow and some do not regarding performance rights and manufacture rights. It is considered to be unethical to steal others ideas without putting enough of your own ideas or uniqueness into it. Chance went about it the right way in calling the person on it and resolved it without involving the legal system, which in most cases, no one but the lawyers involved. From legal standpoint, there are:
Patents - The can protect the specific implementation and working of an idea or the specific ornamental design of a product. Copyrights - From lawyer's website: "A copyright protects literary works, musical works, dramatic works, choreographic works, graphic works, audiovisual works, sound recordings and architectural works." When a company or person asserts that they have performance rights or manufacturing rights, they are appealing the ethical side that I first mention. It is true that a copyright could cover a specific way to perform an illusion such as the choreography etc. but would not seem to be the method to protect the working or the ornamental look of a trick or illusion since this is what patents are for. In fact, what the lawyers tell me at the company that I work for is that if you release a product (sell it) to the public without a patent you are essentially giving up you rights to be able to patent it in the future (I think there is some time that can elapse and you you can still file or be in the process of filing but I don't know the details.) The only other set of laws regarding I know that protect Intellectual Property (IP) are trade secrets and trademarks. Neither applies to magic secrets, in that trade secrets must be kept secret such as the recipe for Coca Cola and trademarks cover naming and logos. So I would agree with Marshall in that if you want legal protection go with a patent. I would also agree with Chance in that this not likely very practical in most situations (could be worth it for very high volume items, Tenyo has a lot of patents.) There is nothing wrong with asserting that you have the rights to something and then appealing to the ethics of the copycats but more importantly the consumers who can choose to support the companies who come up with ideas rather than the ones that copy them. Let me know if you think I am off base. Matt.
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Kent Messmer Veteran user Montana 337 Posts |
To the point of “PC” (Pauper's copyright) and mailing yourself documents and such, someone in another post mentioned that one could simply mail, certified and the like, an empty envelope for use at another time. (All in all we are talking about ethics??)
I’m sure if one were to use a “PC” as proof that they were the creator of an item that the above-mentioned “empty envelope” scheme would be brought up in court from the opposing attorney. Here is a simple tip in using the “PC” type copyright: Have the postmaster postmark each page before sealing the package. |
m.ruetz Veteran user Peoria Arizona, USA 378 Posts |
I think the term copyright is being blurred throughout this topic. The original post asks about drawing up plans and having them copyrighted. This would be the correct protection if the goal was to protect the republication of these plans. This would not allow anyone to produce infringing plans and sell them or reproduce them. If you want to limit the ability for someone to make or sell the illusion, that is what patents are for. A copyright can also apply to the choreographed presentation of the illusion, but not the illusion itself. The concept of mailing plans to yourself used to be considered to be a method to prove the time and method of your invention. This is *not* the suggested means that the US Patent Office suggests to do this sort of thing. They suggest that you keep detailed bound notebooks which detail the various versions of the invention, drawings, testing performed, names and signatures of persons involved with the design and testing of the invention. This can be notarized by a notary public (which costs more than a 37 cents) but is the accepted method for documenting your invention. It is not really clear this buys you anything though unless you intend on pursuing a patent on the invention.
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GuySavoie Loyal user Tampa, FL 242 Posts |
To add some further clarifications:
Chance, you cannot copyright your idea; you can copyright the *expression* of your idea, however. That protects the style of your work, including theme, colors, "look and feel", etc. Patents are reserved for ideas, including methods, processes, etc. As for the mailing a copy to yourself idea, it doesn't have any real weight in court. I have this on the word of many lawyer friends. It is better to have the pages notarized, and no need to mail it to yourself. Still, this doesn't protect the idea itself. Chance, your work has unique character, and I highly recommend you consider filing registered copyrights on all of your props. It is CHEAP ($30!), you can do it yourself, and it provides the following advantages over the default copyrights that default to the creator: - If it is registered, you can file an infringement suit. You can't if it isn't registered. - You have 5 years after creation to register the copyright, and if you do, it establishes prima facie evidence in court. - If you register within three months after the creation of the work, or prior to an infringement, the defendant is required to prove that infringement *does not exist*. That's HUGE. Normally you would have to prove your case. If you file right away, though, the burden of proof falls to the defendant. - If you register within three months, or prior to an infringement, the copyright violator is open to statutory damages and attorney’s fees. If not registered, the only money possible is actual damages and profits. - If you register the copyright, you can record the registration with Customs for protection against the importation of infringing copies. Not bad for $30 a pop! Here's a link that can get you to a PDF of the proper form to file with the Copyright Office. http://www.fno.org/nov02/copyregistration.html --- Guy ---------------------------------------------------- By the way, your props would be protected by a visual arts copyright registration. --- Guy |
Blitzen Regular user 167 Posts |
Where to start, where to start...
I am a patent attorney, but this isn't legal advice, each situation is different, I'll give you real advice when you sign my agreement and pay me. Screw ethical rights, they don't mean anything in court. Copyright will only help you if someone makes copies of your plans, but then, it would only cover copies of your plans, not the underlying idea. Patents are nice, but they're public knowledge 18 months after filing. If the patent doesn't issue, the secret is free to anyone, if it does issue, the secret is free to anyone but you can hire a litigator to enforce your patent. See the postings on my website: http://www.odonnell-law.net in the magic law category and contact me with specific questions. Steve |
paulnathan New user San Francisco 21 Posts |
Wow! What an amazing amount of information and help. I'm blown away by the amount of knowlege so freely shared.
I don't have a lot to add except this. No matter what you do to establish ownership of your illusion you will still have to enforce that ownership yourself. that means finding any potential infringers, and filing against them. Even if you can find them and file against them and get as far as a court room, you could still loose. But what is worse is that even if you win you still have to collect whatever judgement is set. It's a pain, and it's expensive. That is one reason why theivery is so rampant in our industry. I reccomend just making an illusion that is so clever that no competitor can duplicate it's cunning design. Then manufacturing it with such exacting standards and at such a low price that no one will be able to compete with you. Just a thought. P
Love thy neighbor.
Oops. Sorry. That should have been... Make love to thy neighbor. http://www.badmagician.com http://www.firemagic.com http://www.devilinthedeck.com http://www.ihatechildren.com http://www.darkkabaret.com |
bluemagic Loyal user 271 Posts |
This may help other.
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