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The Magic Cafe Forum Index » » Grand illusion » » How Much Time Needs to Pass? (0 Likes) Printer Friendly Version

JVHarrison
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I am fascinated by the discussions of legally protecting magicians' secrets and the ethical discussions that are a necessary adjunct. As a lawyer, I have to agree with the general conclusion there is little magicians can do to legally protect an illusion; accordingly, many of the conversations on this board settle on an ethical construct to solve the problem, which is all well and good. Here's my question: how much time needs to pass before someone's magical innovation passes into the "public domain"? With copyrights and patents, the answer is clear, but if we are protecting innovation by ethical consensus, there doesn't appear to be a clear answer.

It's important to remember that patent and copyright law hinge on a quid pro quo; that is, in order to stimulate artistic and creative innovation. the government gives a temporary monopoly to creators IN EXCHANGE FOR the notion that the innovation reverts to the public after a set period of time.

So what is the right amount of time? I don't have an answer, but I'm hoping to stimulate a discussion. For instance, should Steinmeyer's Celestial Elevator continue to be protected almost 30 years after its introduction? A patent on that innovation would have expired a dozen years ago. On the other hand, if it were possible to "copyright" magic (and it's not), Steinmeyer's creation would have roughly another 100 years protection. Why have the zig-zag and the sawing fallen into public domain? Shouldn't the heirs of Harbin and Selbit be paid a royalty by everyone who builds such an illusion for commercial purposes? Or is it the case that once an illusion is copied enough without authorization, it becomes public domain. Are we linking our ethical protection to the life of the innovator?

I realize this is long and theoretical, but if we're going to have an ethical construct, it needs to have a termination date. Just looking for insightful discussion. (Oh, and to be clear, I'm not suggesting that the Celestial Elevator become "public domain", but it's a well-known illusion that's just old enough to make the point).
JNeal
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Your question(s) are very well articulated and similar threads are ongoing in the Food for thought and right or wrong sections of these fora. I hope you will repost this in those areas as well because the nature of the question is paramount aside from illusions.

Most recently in the forum called" right or wrong", a fellow said that if it's easy to steal then it's alright to steal!

As a practical matter, I think the reason that the Zig Zag and the Selbit/ Wakeling sawing have become 'public domain' are for two different reasons. The Zig Zag was published in a book that gave the book's owner exclusive and limited rights to build one for his or her own use. there were exceptions made for certain people such as Johnny Gaughan who was friends with Harbin and may have made separate arrangements.

In any case, with Harbin's passing and the book's press run being limited, there was no one to assert themselves as the protector of those 'rights' and people collectively felt that if they couldn't get the book, they would build one anyway....who was there to stop them?

The Selbit Sawing was invented many years ago and 'improved' , almost 're-invented'... by the work of Alan Wakeling and the construction genius of Johnny Gaughan. And in it's first and limited production, the rights to perform it were controlled by Johnny Gaughan. Reveen, Don Bice and only a few others arranged with Johnny Gaughan to have them constructed. I am not privy to what, if any, part of the proceeds were given to Alan Wakeling for his efforts, but he and Johnny were close friends and I am sure they came to an agreeable arrangement.

This trick really took off with the publication by Jim Steinmeyer of Alan's book: The Magic of Alan Wakeling and I don't think performance rights or limitations were placed on the material therein. So, anyone who bought the book could go to their local carpenter or make it themselves. In essence Johnny Gaughan was no longer the 'required' conduit for this effect. Probably more than a few book buyers went into construction as a business.

Now that the book is not a publication exclusively for the magic community and is available in a trade paperback, the information definitely becomes "public domain'.

So, I think that given the conditions you outline so accurately, it requires a person who continues to assert their 'rights' of ownership with the element of threatened legal action to protect an effect or idea.
I concur that it seems rather indiscriminate as to what is protected and what is no,t and I look forward to your comments and continuing this open discussion.
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ClintonMagus
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How many sets of performing rights to Celestial Elevator do you think Jim Steinmeyer has sold? Ten? Twenty? Has he been sufficiently compensated? Assuming he gets $1500 a pop for the rights, is $30,000 an appropriate amount of money? I don't know.

I think thast Zig Zag and other illusions have become de facto public domain because everyone looked the other way when folks were ripping them off. No one cared about creative "rights". If you (generic "you") feel that it's ethical to take someone else's creation without permission, then go for it. Steal entire acts, if you wish. There's nothing that the greater magic community can say or do to change your mind.
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JVHarrison
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I want to start with the fiction that we all agree that it is not okay to steal and that innovators should have an exclusive period of time to exploit their creations -- I realize that this isn't reality -- but assuming every magician played by the same ethical rules (i.e., letting a creator exclusively profit from his or her creation for a period of time), the question is, when should a creator give up that exclusivity? At some point, with patents and copyrights, the public no longer needs the creator's permission. In an environment where the prohibition on enterprising on an other's work is ethically, rather than legally, enforced, at what point is it no longer ethical for the creator to demand a monopoly?
JNeal
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Interestingly, When Zig Zag debuted, there was much hue and cry over Jim Sommer's 'simultaneous invention" and the community rallied behind Harbin. With his death, so ended the protectionism.

I generally believe that the creator has the exclusive rights to profit from his invention for his lifespan. It was not inheritable or passed on as exclusive. However, my point of view may be rather naive and optimistic.

How long is a design patent good for? That might be a key to determining an equivalency and a reasonable interval of exclusivity.
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Dennis Michael
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Finally, a conversation without bashing!

I have several friends who are Magic historian buffs. When I ask them the originality of an effect, I am surprised to learn the the effect was around many years before someone brought to surface again. The "magic community" then labels him as the originator, even though he says nothing about the origin.

Ethics is simply just that, an individual choice on what is right or wrong without no clear cut legal decision. When TV runs the Mask Magician show, it does so for the ratings, not the ethics of the magic community.

From what I see, most magicians are an honest group, and will not copy routines that others are using to make a living. McBride, Michale Finny (The trick is public domain, but the routine is his), Cooperfield, etc.

I've studied Levitations for years, and stage flying has been around for centuries. Copperfield's method or John Gaughan method of accomplishing that routine, is patented, however, other methods of doing it are within a magicians grasp.

The problem with magic inventions are there are only so many was one can appear or disappear an object, which has been outlined in "The Trick Brain". An individual can be innovated and produce an illusion but with a different "look" and it becomes theirs until he no longer is using it, then others try to mimic it.

The bottom line, is when one defends a product of theirs, and the word gets out another is coping, the places in the magic community become limited. In essence, we "police our own" by not hiring those known to copy others. Originality is important. When a product comes on mart for sale, then the coping begins. The average buyer doesn't know if it is the original or a copy.

Just my thought on this topic.
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ClintonMagus
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Quote:
On 2009-08-27 00:11, JVHarrison wrote:
In an environment where the prohibition on enterprising on an other's work is ethically, rather than legally, enforced, at what point is it no longer ethical for the creator to demand a monopoly?


It is "ethical" for the creator to demand the "monopoly" for as long as he wants (or as long as he is still alive). Remember, ethics (or honor, or character, or integrity) is what you have when no one is looking...
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JNeal
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"From what I see, most magicians are an honest group, and will not copy routines that others are using to make a living. McBride, Michale Finny (The trick is public domain, but the routine is his), Cooperfield, etc."

Sadly, this isn't quite technically true Dennis. But in many cases, the copying done by some big name professionals from other(lesser name) professionals is done in a sneakier way. They get as close as they can to the routine that they want to steal and then they cite sources in print that (somewhat) justify their actions. I will avoid naming names to keep from 'bashing', but there are many 'pros' who have had material lifted by bigger (more famous) pros.

As to the limits of methods as essayed by Fitzkee, this does not justify the thievery... since most magic routines are combinations of known elements in a unique fashion. This unique combination is why a design patent is relevant to the discussion. But I still don't much about the longevity of these patents.
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JVHarrison
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A design patent lasts 14 years from the date it is granted. I have to agree with JNeal on the extent to which certainpros who are lauded for being incredibly original have adopted the material of others. Again, without naming names, there is at least one highly respected pro who lifted an entire routine from a lesser-known Canadian performance artist. The fact that the performance artist doesn't have a "name" and the appropriation occurred almost 25 years ago, shouldn't matter in an ethical argument.
JNeal
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So to me JV, it seems likely that if most magical inventions are unique combinations of unpatented or public domain concepts, that these inventions are really similar to design patents....and therefore under an ethical construct as you suggest, it should be 14 years.
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JVHarrison
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Hey JNEAL, thanks for drawing a conclusion -- very brave of you considering the topic. If 14 years is hypothetically the proper length of time, there would be a lot of innovations that are currently being voluntarily "protected" by those of us who are ethically inclined, which have already fallen into the public domain (celestial elevator and origami, just to name two). Yikes!
Bill Hegbli
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I think a good rule would be when the original manufacturer is dead, and it has not been passed on to anyone that is related that can and will carry on the production of the items.

Currently, Rice Silks have been copied taking what little sales from his daughter that are out in the market place. She was down for a year, and the vulchers jumped on copying there products but making them out of poor quality silk.

Abbott's Magic has been ripped off of many of there items it seem like monthly. They are in active business, but many are stealing all their property.

Currently, someone has now come out with the Dancing Hank. Clearly not as well built as the original.

Now when you buy a product there is no way to know what it will be when received. I have seen so much junk appear on the market, it is really a crime to take peoples money and give nothing that lasts or works properly.

You use to buy an Owen, Abbott, Tannen, Russ Walsh, Sam Berland, Magic Inc., Supreme, etc. Now all that is offered is the item and and no information on source at all. There is so many India manufactures making the same thing, you cannot distinguish between them either.

So now the few sales that are in the market is spread among many, causing magic manufactures to out of business or stop production.

There is only about 5000 to 10000 people that are buying magic at any one time. This is not a huge market. So this cheap market has just brought the lightly interested persons interested into magic to complain about the very low prices they are already paying for this India junk.

Much of this applies to Illusions as well. I tell you when I buy a head chopper, I want to know it works and I really do not hurt anyone.

The only companies that are really making any kind of profit from this is the wholesaler, he supplies all the hobbyist web stores. While brick and mortar stores are going out of business.

Anyway, go ahead and copy anything you want. Magic builders do not have enough money to take you to court. All you can get is a bad reputation from places like the Café. If you have no morals to begin with it does not matter to anyway, you got the money instead of the originator.
JNeal
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There was a wonderful book written on a similar subject which dealt with the efforts of corporations (such as Disney) to push for legislative extension to copyrights. The author in essence was saying this was in defiance of the original intent of our forefathers: which was to limit the life of protection so as to spur further innovation.

it's a fascinating subject that you have brought up and I'm really surprised that it has produced such a small li response in this forum.

As an adjunct to the question and ethical construct you brought up, I what it would take for someone's creation to be considered new again...in other words, could the 'inventor' make a small change in design to renew their protection after 14 years? What percentage would have to be new, for it to be considered a new item?
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Banester
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JNeal the little response comes from the multitude of talk on this subject that has previously been done.

Your "new" concept would be great; however, the original still would not be protected because you just developed something that differs from the original. So the new and improved would be protected, but the original would be out there for the vultures.

Make magazine has a good article about magic and patents. I do not recall what issue, but John Gaughan is interviewed along with several postings of his patents.

Good topic, it has been nice that it has developed into a heated arguement.
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Alan Munro
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I think there have to be new laws to protect intellectual property, including illusions. But, this protection has to also protect ideas in other industries or it has no chance becoming law.
Caliban
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On a side note, apparently the rights to the Harbin Book - and thus the rights to the Zig Zag illusion - are owned by something like the British Origami Association. Harbin was really into origami and left them the rights to all his published works in his will. This makes more sense when you consider that Harbin published more books on origami than he did on magic.

I'm told this was a stumbling block when magicians looked into suing over the exposure of the Zig Zag on TV. There was little they could do about it because the rights to the illusion were owned by an organisation that didn't really value them or have any interest in magic!
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