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DavidKenney Inner circle 2178 Posts |
I don't know if you've seen but Penguin has a new gaff deck for sale
product page: http://www.penguinmagic.com/p/4121 Watching the trailer I see several gaff cards that have appeared in a few "E" decks but they also show the "entwined hearts" card http://coterie1902.com/products/tricks/entwined-hearts by Zennith Kok Sure we could say that it would have been good form for 1st Magic Studio to ask Zennith if they could reprint his design, but do they have to? Can you call "dibs" on a design of a gaff card? If that were the case then we can't print double backers and double facers right? Because someone else "designed it" How many different ways are there to design a card? I know countless effects where the pips in opposite corners are different so that you can "roll" the card and create a new face for the spectator to see, does that mean "that gaff card" is now copywritten and I have to go back and ask Daryl, Copperfield, Mason and whomever else has marketed that effect for permission to print it again? Or is art art? From the Teller Lawsuit the Hollywood reporter said, "Technically speaking, magic tricks aren't copyrightable. In a ruling by a Nevada federal court on Thursday, U.S. District Judge James Mahan states that explicitly. What is protectable under copyright law is pantomimes, the art of conveying emotions, actions and feelings by gestures." But are gaff cards "magic tricks" or are they art? Design? Creativity? I assume because USPCC has a legal department and because they are usually on top of this kind of thing, they already asked this question and felt comfortable printing them - or their legal team missed it. Questions? Comments? I am not picking a side, I only ask the question. I am sure many of us have "thought of" a gaff card now and then. |
magicwatcher2005 Elite user Washington state 446 Posts |
Technically, if it hasn't been done before then it is protected under an "informal" copyright. But in order for the original creator to take legal action he/she would have to first file for a registered copyright, and pay a fee to the government's copyright office for such registration. In the USA the fee is remarkable small - $35 to file online and $65 to file in paper form.
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DavidKenney Inner circle 2178 Posts |
Ok, but do Magicians have the right to copywrite a card face when the images are public domain? If I design a 3 of Clubs with a 2 of clubs pip on one end, did I "invent that?" If I design a 3 of clubs with a missing pip in the middle... is that now my "art work?" Or are these just "ideas" I was under the impression that you can't copy write an idea, nor can you copy write images that are already public domain.
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jimgerrish Inner circle East Orange, NJ 3209 Posts |
Spell the word correctly and it may help to understand it better. It's not "Copy-write" but "copyright", that is, the "right to make a copy."
Jim Gerrish
magicnook@yahoo.com https://www.magicnook.com Home of The Wizards' Journals: https://magicnook.com/wizardsTOC.htm |
MRSharpe Special user Never a dull moment with 940 Posts |
First magicwatcher2005, your comment is not totally correct. Filing a formal copyright is not required before filing suit. It may make the process of defending original work in court easier which is why it is recommended, but it is not required. An original work by any artist is automatically covered by copyright.
David, if you read the legal notice that comes with every USPCC deck, only a few of the images are copyrighted. If memory serves, it's the Jokers, Ace of Spades, and back designs, but then it's been awhile since I read the notice. The other parts of the images, the pips, fonts, spacing between elements could be considered as part of the overall design and therefore copyrightable, but I'm not sure. Some of the consequences of copyright infringement depend on what action the originator takes if that is your concern. If you have an original design for a gaff and you think it might be commercially viable then file for a copyright. But keep in mind that often the cost of defending a copyright of patent is very high. The guy that invented Velcro® made almost no money from his invention before he died because he rolled all his profits into patent infringement litigation.
Custom Props Designer and Fabricator as well as Performer from Indiana, USA
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DavidKenney Inner circle 2178 Posts |
From the http://www.copyright.gov/ website;
How do I protect my idea? Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work. Does my work have to be published to be protected? Publication is not necessary for copyright protection. |
tomsk192 Inner circle 3894 Posts |
Moving away from copyright, briefly, I assume that Kenneth's trick is animated, as per the advert. I am also assuming that what you get in the gaff deck is not animated. If anyone could verify this I'd be interested to know.
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DavidKenney Inner circle 2178 Posts |
I believe it's two fold - animated AND a "final reveal" gaff is included (since it's signed) and you give that to the couple as a keep sake. I think the main argument is that the gaff deck does not include his effect... just a gaff card that is exactly like the one he invented. I suppose the gaff designers could argue that they didn't know about Kennith's trick and that they had the same "idea."
What about McDonald's Aces? Those are specific DFs. If you found those in a deck with no explanation, you'd say to yourself - "hmmm, I could use these for McDonald's Aces" and because you have prior knowledge of the effect and how it works - bonus. (technically you could do McDonald's Aces with any four of a kind - even Jokers)but would your thought be.... "OMG they've stolen this gaff from McDonald's aces!" What about when Ellusionist was putting card reveals on their jokers or AS cards, that's technically a marketed Jay Sankey trick "fine print." One of the Ellusonist gaff decks contains all the cards to perform Doug Conn's "Pip Trip" and in the companion video the magician basically revealed Doug's entire effect, but in reverse. So this isn't the first time this has happened. |
tomsk192 Inner circle 3894 Posts |
Well, it sounds as if Kenneth is owed an explanation.
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magicwatcher2005 Elite user Washington state 446 Posts |
Quote:
On Mar 31, 2014, MRSharpe wrote: Well, technically, anyone can sue anyone for anything, regardless of having established a case. But no court in THIS country is going entertain an infringement suit brought by someone who has not even taken the basic step of registering an original work with the copyright office. If you know of ANY case that has ever varied from that basic tenet, please, do cite. Otherwise - in the spirit of "magicians helping magicians" - maybe good advise for the OP is a better way to go. . |
Chris Inner circle lybrary.com 1177 Posts |
I have written about this subject in MUM in my card making series a while ago. USPCC does not have any copyrights on their classic card designs, but trademarks. Two very different things. On new artwork they may have copyright protection but for example on their Bicycle back, Joker and Ace of Spades they have a trademark no copyrights. If they ever had copyrights these ran out a long time ago. But trademarks are forever as long as they are used in commerce.
However, trademarks work very differently and it depends for what you are using the cards. If you are a card manufacturer and you would use the USPCC designs you would commit trademark infringement because a customer would not anymore know who made these cards, if they use the same designs. However, USPCC only has trademarks in certain classes. I argue cards for the magician are hand tools. And hand tools fall under a different trademark class. So if you are a magician making your gaffed cards to do your magic tricks with you can certainly use all of the classic USPCC designs because they are neither copyrighted nor trademarked for that use. That is my opinion and I am not a lawyer, but I have thought about it and read about it extensively.
Lybrary.com preserving magic one book at a time.
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DavidKenney Inner circle 2178 Posts |
So Chris what you are saying (in your opinion) is two magicians can print identical GAFF cards because the images used are public domain? In other words regardless if it's McDonald's Aces or Ultimate Monte - or a trick you invented.
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Poof-Daddy Inner circle Considering Stopping At Exactly 5313 Posts |
Quote:
On Apr 6, 2014, DavidKenney wrote: Absolutely, take McDonald's Aces for example, there are several other card effects that use a dbl face card. Just because McDonald's Aces exists as a marketed effect doesn't mean you cant use those cards in another effect. You can go out and buy McDonald's Aces as a stand alone effect with instructions, gaffs etc. But the same 4 cards are available in any dbl face deck. I imagine it is a "chicken or the egg" thing as to which was first. If the joined heart card is part of the deck, it will be up to the buyer to come up with a routine for it. It isn't even the same as the card from the link you provided. The 1st Magic Studio one looks to be a dbl face (by the demo move - spinning change in air) where the one in the link has a signed back and can be given away. I don't really see the 1st Magic Studio one getting much mileage.
Cancer Sux - It is time to find a Cure
Don't spend so much time trying not to die that you forget how to live - H's wife to H on CSI Miami (paraphrased). |
DavidKenney Inner circle 2178 Posts |
Well, I spoke with Daniel Garcia since the "four queens" from the penguin magic video are CLEARLY the gaffs from Elusionist's ULTRA GAFF and he said to me that "they were already looking into it" so who knows? Maybe that deck won't be around for much longer. I picked one up just in case. Very cost affordable deck. But I am with you....
I don't know how someone could claim "rights" to a gaff deck. All the pips and images are public domain - you're not making "art" with them, you are just moving them around the card face. |
MontrealMagic Regular user 128 Posts |
I am not sure, They are not marketing it as a "trick" per se, they are selling a deck with the tag "figure stuff out your own ***ed self". Am I breaking copyright if I put on lipstick and kiss my own red cards and use it for "Lips"? Should I seek a therapist first because I have a some sort of "issue"...but I digress.
I don't think it is a copy issue, more of a grey area. |
MRSharpe Special user Never a dull moment with 940 Posts |
Quote:
Well, technically, anyone can sue anyone for anything, regardless of having established a case. But no court in THIS country is going entertain an infringement suit brought by someone who has not even taken the basic step of registering an original work with the copyright office. If you know of ANY case that has ever varied from that basic tenet, please, do cite. Otherwise - in the spirit of "magicians helping magicians" - maybe good advise for the OP is a better way to go. MagicWatcher2005, are you an attorney? I'm not, and I don't believe you are either. I am an artist and have some knowledge of copyright law for my own protection. You say that technically anyone can sue anyone for anything, regardless of having established a case. While that it true it is not a good idea. For example, and to the point, I could file a copyright suit against USPCC claiming the rights to their Ace of Spades design for example. But my suit would be thrown out as frivolous since USPCC clearly has registered the design. You make a mis statement of the facts about how civil suits work. The are based on a preponderance of the evidence. If two different artist have nearly identical designs for a comic book character for example, the one who can establish his or her design as being the older, i.e. original, design has the copyright even if there has been no registration of copyright for the design. Such evidence could be preliminary sketches that are established as being older than the other party's similar evidence, eye witness testimony regarding exhibition of many different types such as having submitted preliminary sketches to a comic book publisher. You name it as long as the evidence can not be shown to be faked in some way, in the case of physical objects, or perjured, in the case of eyewitness testimony, can be used in a case. That establishes a preponderance of the evidence. The best evidence of originality--the de facto evidence--is copyright registration which is why I made the point that registration will save your attorney time and you money in fees if you decide to apply. I won't site any cases because I am not an attorney and know of no cases per se. Keep in mind that what I am saying is my understanding of U.S. copyright, so if you are in the U.K. or any other country this may be untrue. But, regardless of what country you are in, we can put this to bed fairly simply. Get your phone book out or alternatively use the internet and find the phone number of an attorney who specializes in this branch of law and just ask him or her if it is possible for an artist to sue for copyright infringement with having registered a work. Then get back to me. And as to your parting shot, being flippant isn't helpful either. And I just went back and looked at other posts and Chris Washuber is correct. USPCC does not have copyrights on their classic designs. Instead of they have them trademarked. Here in the U.S. copyright protection exists for the life of the artist plus seventy years. If those designs were ever registered they are old enough that the seventy year time period has elapsed. At some point they trademarked the designs instead. Still, m use of their Ace of Spades design in my example of a frivolous lawsuit is sound, so I'm not editing that out of my post.
Custom Props Designer and Fabricator as well as Performer from Indiana, USA
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DavidKenney Inner circle 2178 Posts |
Gaff deck in question: http://youtu.be/4wQhKvk7oyo
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