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twm
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When I buy a trick, I make the assumption that the seller has the right to sell it, and that I am buying the right to perform it. If I read about an effect in a book, I assume that the author is giving me the right to perform it.

What if I see someone perform something, I can see how it is done, and want to perform it? I don't perform for financial gain. I doubt that I will ever perform other than in care homes. Should I still buy it before performing it? Some people would sell me a trick like 'Out of this world' if I was prepared to pay for it. What gives them the right to do that?

OK, so it doesn't make sense to patent a trick, because that involoves disclosure, but I assume an effect is an artistic performance that is covered by copyright laws. What if can see an alternative presentation that I prefer, but still uses the same gimmick?

Anyone got any guidelines?

I assume these issues have been discussed ad nauseum here, but haven't found anything yet.
volto
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Very good question. Ad nauseam is right. This is a tricky area and opinions vary. Here's mine:

There's a whole forum for these questions here: http://www.themagiccafe.com/forums/viewf......77&17130
There are many organizations with their own codes of ethics. The basic gist seems to be:

1) Practice until you can do the trick without any danger of giving away the secret.
2) Only reveal secrets to those who have demonstrated a serious commitment to study magic and who have sworn to uphold these rules.

Other rules are sometimes added, like "honor the creators (of effects)", "don't interfere with the performances of others" and "take good care of the rabbits and doves".

On the legalities, you should always consult a lawyer in your own territory if you feel there may be any concern. However, Bill Palmer has posted some interesting thoughts in the past on this subject, here:
http://www.themagiccafe.com/forums/viewt......um=171&4
...and in other posts in his "From the Wizard's Cave" forum, on the Café: http://www.themagiccafe.com/forums/viewf......=171&140

Performance rights are usually implicit in the purchase of the effect, but in some cases performance rights are reserved or restricted in some way. In some cases the authors ask that you don't duplicate their presentation - not because they don't want you to use their effect, but because (for artistic reasons) they don't want everyone reciting their presentation parrot-fashion.

To each of your questions-
"What if ... I see how it is done, and want to perform it?" - You probably could, but it would probably be considered ethically dubious at best and legally hazardous at worst.
"Should I still buy it...?" - Probably yes, but be careful you're not buying garbage, or just buying some widely-available secret (as you point out). You should always try to buy effects from the originator, where possible (there are many rip-offs of popular effects). Although sometimes there's debate about who invented what.
"[People sell garbage] What gives them the right to do that?" - Their own unscrupulous natures. There are loads of reviews in the review section here on the Café. It's a great place to check before you buy.
"What if ... alternative presentation ... same gimmick?" - Some gimmicks are patented. A few are even licensed, in a similar way to computer software (i.e. you don't own the gimmick, you just have the right to use it). Altering a copyrighted presentation to avoid purchase would be considered ethically dodgy by most, and may still be a violation of copyright (see Bill's posts linked above).

One great practical answer to all of this is to buy magic books, especially old ones. Amazon and eBay are great for this, especially for second-hand books. Thousands of effects and methods, available for next to nothing. Between "The Amateur Magician's Handbook" and "Mark Wilson's Complete Course in Magic" there's a massive amount of excellent material, for around $10 the pair including shipping, second hand (I just looked).
Also, Bobo's "New Modern Coin Magic" is great. "The Royal Road To Card Magic" is another bible for some folks. "The Tarbell Course" is probably the single most helpful reference for nearly everything.
If you don't have the cash to buy books then there are several out-of-copyright books available online:
http://www.archive.org/search.php?query=......ricks%22
Also there's a great archive at "The learned pig project": http://www.thelearnedpig.com.pa/

Hope that all helps, anyhow. Apologies if you knew all this already - I thought I'd try to be helpful, seeing as this is the 'new to magic' forum... Smile
twm
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Thanks volto. Plenty of food for thought there. Yes, I hoped it would be relevant here as many people must be facing the same issues as me. I'm a long term hobbyist in the process of moving up a notch, so issues that didn't really concern before can now become more important. I hadn't managed to find the forum you signposted above ('Right or Wrong?'), and that is great. I'll wander over there and see what comes of it. It looks as if they cover lots of interesting ethical questions there.

Many thanks for such a thoughtful and complete response.
rklew64
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I believe the guidelines your looking for are would simply come from yourself, common sense and integrity.
twm
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That's a fair comment, but I think custom and practice have value too when trying to get your head around an ethical question.
In the immortal words of Sir Samuel Thomas Evans: 'Precedents handed down from earlier days should be treated as guides to lead and not as shackles to bind, but the guides must not be lightly deserted'

It's handy to know what the community regards as ethical, as a starting point at least.
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Its important to understand the difference between rights and ethics. Rights have to do with the law. Ethics have to do with a societal code of behavior.

Your topic asked about rights, which is a legal question. Most of the answers here are about ethics, which is a social and personal question.

Legally, intellectual property rights fall into three areas.

(1) Patent Protection. Patents were originally created to encourage inventors of manufacturing processes to disclose those processes. Too many crafts were losing information because a craftsman would guard his methods jealously as a competitive advantage and take them to his grave. Patent was invented so that a craftsman could disclose his methods for future craftsman to build own, but still retain a monopoly to make money on for a reasonable amount of time. One interesting, and today potentially problematic, thing about patents is that you do not have to be aware of a patent in order to have infringed it. As long as someone else patented the process before you came up with it, they own it and can stop you from using it.

The applicability of Patent has been stretched a great deal over the years to cover things never intended by the original framers today. (And some would argue, such as me, to cover things that are inappropriate and hurt industry today.)

(2) Copyright. Originally, any book, painting or other artwork took a great deal of labor to copy. This effectively discouraged others from trying to sell copie of an artists work for their own gain. With the invention of printing processes however, the reproduction became a very small amount of labor compared to the creation of the original work. Third parties running off and selling copies of a work took sales away from the creating artists and discouraged artists from producing such works. Such early prinjting-press piracy became so rampant it threatened to destroy the book authoring industry. In response, Copyrights were created.

Copyrights only apply to artistic works fixed in a tangible medium-- books, paintings, recordings and so on. As soon as an artistic work is fixed in a tangible medium, Copyrights accrue to the creator. This means that it is illegal for anyone to make a copy of that tangible good without the author's approval. Interestingly, the creator does not have to be the one to fix it in a tangible medium for copyrights to accrue. If you make a video tape of someone elses performance, THEY own copyright to that tape.

If you were not exposed to a work , then there is no way you can have copied it and so, unlike Patent, ignorance of the work IS a valid defense against claim of copyright infringement. In order to infringe, the copy must also be of a "significant portion" of the work. What is significant is left to the courts to decide.

(3) Trademark. People often confuse Copyrights and Trademarks but they are totally different. Trademark goes back to a craftsman's tradition of putting a "maker's mark" on an object they create so that the buyer would know who made it even if the maker were not present at the sale. As craftsmen developed reputations, those reputations would have value and a maker's mark would stand for a guarantee of craftsmanship and quality. Once a maker's mark had value however, unscrupulous and often less talented makers would imitate the mark in order to inflate the value of their own work. Trademark law makes this illegal.

Unlike Copyright, where any copy is illegal, anyone can use anyone elses Trademark as long as such use would not confuse a "reasonable consumer" as to the origin of the work.

So, just as an example, I write a Dungeons and Dragons adventure. I can't say "A Dungeons and Dragons Adventure" on the cover because it might confuse the buyer into thinking it came from the makers of Dungeons and Dragons. I CAN however say "An adventure for use with the Dungeons and Dragons game" as long as it is clear that I am not WOTC.

Edit: Though in most venues it doesn't come up, I should mention in THIS venue that Copyrights also cover performance rights. There is a good general copyright article here: http://www.bitlaw.com/copyright/scope.html

One thing that again applies in this venue more then many is the concept of "implied license". If the clearly intended use of something you buy is to copy it in some way, that can be taken as an implied license to that use. From your question, if you buy magic trick and there is a routine in the instructions,baring any statement to the contrary its pretty clear that you have an implied license to perform that routine.
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rklew64
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Now that the formalities are out of the way. Thank you Cyberqat! About your "alternative presentation", you should be able to employ your own ideas and changes to a base routine or trick or modify a gimmick that makes it work better for you. It's crazy to think that you would police yourself to such a point of self restriction. What if you had a previous injury that prevented you to use something, you would not use it then because you know that you would need to tweak it. Besides, most books and dvds permit that and even encourage it, again how you use that change is your integrity and honor for it.
How many times have you heard on a dvd saying control the card to the top, use whatever method you like. Let me know if I'm totally off.
And if your worried of deviating from a routine, it almost calls to credit every trick, effect and illusion right before performing it or spending 15 minutes post show to credit your entire show.

The intent is great don't get me wrong, but I feel your overly concerning youself a path that would seriously paralyze yourself enjoying magic regardless going "up a notch" not.

Hey, at the end of the day, I just enjoy performing and learning magic. I buy all my books and dvds. I try to buy as many effects from the originator so that I know I'm supporting them directly, I can get something signed, and I establish a communication channel with the actual magician (which is way cool!!).
I've gone to quite a few lectures ranging from Joshua Jay to Michael Ammar to Gregory Wilson and not ever did anyone ever bring up legal issues let alone IP matters regarding their signature routines or gimmicks or lecture notes.

Would you not perform something from a book you read that was checked out from a public library because you did not outright own that book. If your reasoning applied, then I can not alter a recipe by substituting any ingredient or omit that tablespoon of salt because of my hypertension. That sounds just over the top to me. Again I apologize if I have digressed from your intent or original purpose of your question.

Posted: Apr 5, 2011 10:37pm
This topic is too mature and assumes one practices responsibility in their lives overall.
Oh, and I forgot to mention that I try to do my best due diligence when buying props and not knock offs.
Next time if you should go to a lecture of a professional celebrity magician, express your sentiment on this and see what they have to say about it. Perhaps ask Aldo Columbini about this. Ask an owner of magic online retailer. Then you will get a realistic snapshot.
Join facebook and make a ton of friend requests. You'd be surprised how approachable most famous magicians are! Because of this forum, I have sent pms and received replies from Harry Loranyne, Dean Dill, Angelo Carbone, Dan Tong, David Regal. and on.
Okay, my 2 cents.
twm
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Thanks Cyberqat. I take the view that ethics are informed by the law. I try to operate within the law as a starting point.

I don't really know what questions I'm trying to ask. That's part of my problem. I just have this feeling that I can buy stuff from people that may not own it, copy stuff that I have no right to copy and so on. So I'm trying to sort out some of my ground rules. It saves trying to sort things out on a case by case basis.

But perhaps an example would help? Suppose I look at a performance of Wayne Dobson's 'Smash and Stab'. I'd like to include that in a show I'm planning. There must be half a dozen ways to do it. Some I definitely don't fancy, having seen people draw blood. I'm not very keen on Wayne Dobson's method - I don't think I could be convincing with that technique. I can see a way of doing it that I would be happy with. I don't want to pay £85 for a set of props that I will never use, neither do I want to nick Wayne's idea. As far as I can see, I am legally entitled to reproduce the effect using my own method, but this is where I cross from legal to ethical. So I'm trying to untangle the issues. I won't do this all the time, but if I can resolve the issues in a couple of cases, life will be easier from then on.

Quote:
On 2011-04-05 22:10, rklew64 wrote:
Again I apologize if I have digressed from your intent or original purpose of your question.

it's OK. I'm not at all sure *I* know the original intent of the question either. My thought about changing presentation was more to do with the fact that if the presentation is changed so it no longer looks like the original, but uses the same gimmick, does the inventor of the gimmick still *own* the idea? I realise there are no easy answers to any of these questions. I just feel I will be better able to make judgements about ethics if I have at least thought through, and discussed, some of the issues.

As far as I can see Calen Morelli is in a class of his own in terms of acknowledging the work of others. Obviously, such acknowledgement is not normally appropriate, or required, when performing, rather than selling. Although I don't intend inventing to sell, I will be happier if I have thought through some of the questions I raised - and a few more questions too.

I hope that makes some kind of sense.
Crimlock
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I have been asking myself the same kind of question. I don't know a lot about quality of tricks yet and if the writer can be trusted, therefore I only try to buy from a renown shop or at some place that is referred trough by someone from the Café.
Crimlock
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Oh and what I forgot to ask, say that I do buy a ebook and discover it is copied from somewhere. Is there a place where I could make a mention of this?
Ed_Millis
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We are always encouraged to "make it [our] own" - which is to say, start with the canned or copied presentation and change it. That is kind of implicit in the growth expected in a performer: you will start here, develop your own presentation, and end up with something unique.

And you may have to use the same gimmick, and even the same basic technique. But it's _you_ doing the performance, and that's what makes it different.

As far as watching someone and reverse-engineering their routine, the care required there is that you don't steal someone else's signature routines. When it doubt, ask. Many performers have a web site with some sort of contact method. I saw a performance on TV, figured it out, and send the performer an email requesting permission to perform it. He asked that I not because he hadn't published it, and I have complied. Not a big deal.

I am not sure at all how legally covered a public performance is. Does a stage performance meet the guidelines of a "tangible medium"? If you've paid to see the performance, whether on stage or over cable, you have not necessarily purchased the right to copy and perform - only to see and enjoy. But that likewise comes down more on the moral and ethical side than the legal side - I think; I cold be dead wrong, though.

One thing to be careful of - you are often not your audience. So the magic that just thrills you may not bring the same reaction from your usual audience. You saw a performance and something inside you says "I gotta do that one!" Will it fit into your intended venue and your performance character, and draw a similar reaction from your probable audience? You have to separate the magic you like to watch from the magic you like to perform.

Ed
Cyberqat
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Quote:
On 2011-04-06 13:34, Crimlock wrote:
Oh and what I forgot to ask, say that I do buy a ebook and discover it is copied from somewhere. Is there a place where I could make a mention of this?

Inform the original author of where you got the copy. They wil appreciate it.

Posted: Apr 6, 2011 9:00pm
NJo performance is a "tangible medium", but it becomes tangible when it is recorded in some way. A video or tape recording would definitely be fixing it in a tangible medium. Hand written notes probably walk a fine line.

SO, on the Copyright issue, if you see a performance, and duplicate some of it solely from memory you are most likely not infringing copyright.

On the ethics issue, it really becomes a personal balancing act. There are some general feelings in the community which help, but in the end the best guide is probably "if you have to ask the question, it may not be ethical;."

I faced this quandary myself recently with my self-developed paint-ball catch. I have no question that I would not have come up with it had I not seen Velocity performed. In particular, part of the method is something I recognized watching the performance and utilized myself. I had a short email discussion with Bob Solari by email and decided that, since my own method was at least in some way derivative of his, and that he relies on his magic sales as a profession while they are far less important to me, I would keep my paintball catch solely for my own use.

Legally, I was in the clear to redistribute as the routine is totally my own. All I got from Velocity was some ideas and a general "pointer in the right direction", but ethically I decided it would be a "bad thing."
I'd note that I feel ethically comfortable performing it because it IS my own routine. If were using his learned from a taped performance, then that would be a copyright infringement and ethically wrong.
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MaxfieldsMagic
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@Cyberqat - thanks for your excellent analysis of the U.S. law re: intellectual property rights. By far the best I've ever seen on this site. I'm an attorney, and specialized in intellectual property in law school, and have to say that you hit every nail on the head.

As far as crediting during a show, I can't imagine anything the audience would care about less, unless you can do it in an entertaining way tied to the presentation. You're certainly not obligated to do it, and unless you're crediting a household name like Houdini, it's not going to mean much to the audience anyway.

Aside from intellectual property rights, however, the right of contract can be a factor. For instance, if a creator markets an effect, and states clearly in the advertising that he reserves the right of TV performance, you then have a contract with the creator when you purchase the effect. This is outside of "intellectual property" rights. For the contract to be effective, however, the terms have to be stated in advance of sale. Language added to an instructional DVD that attempts to limit performance rights, if it was not clearly stated before the sale, is meaningless and can legally (and ethically, I would argue) be ignored.

Most of the ethical arguments you will see on this site are rooted in the gentleman's agreement that magicians won't steal one another's material. That's a valid concern, and can impact both the livelihood of the creator and the reputation of the individual who wants to copy the routine. Ethically, then, if you want to copy a substantial portion of someone's routine, you'd be well advised to either purchase the routine or to contact the creator and offer compensation. This applies especially when, as has been stated, the routine is a "signature" effect of the creator, and exhibits a level of originality and inventiveness that make it unique. The more closely you follow a routine, both in terms of method and presentation, the more important this consideration becomes.

The fact that you are performing for free does not automatically alleviate these concerns. Going back to the law for a minute, you can infringe copyright without benefitting financially at all. It is the act of duplication that infringes copyright. And, whether you intend it or not, your performances effect the earning potential of every professional in your market. If you are performing for free at the Sunrise Assisted Living Facility, that means that a pro is probably not going to be performing there for a fee. It is commendable that you wish to donate your time in this manner, and the residents surely appreciate it, but you shouldn't hold yourself to a lesser ethical standard re: performance rights than a pro would simply because you are not being paid.
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Ed_Millis
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One other item to consider --

Most any magician with a fair knowledge of "operrational methods" can work out quite a few tricks. But if the originator is selling it, they have usually worked out far more than just the raw method - they have worked out the subtle kinks and psychology of performing that can make the routine really shine.

It's often well worth the purchase price to get a glimpse into the mind of a working creator of magic.

Ed
twm
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Thanks everyone. This is exactly the kind of wide ranging discussion I was hoping for.

@MaxfieldsMagic. I wasn't suggesting that it would be appropriate to credit trick designers during a performance. I'm sure you are right. I was simply pointing out that Calen Morelli seems to be one of the few designers who tells you where the ideas come from. It's interesting though that of all the performing arts, I can't think of another where the creative mind behind a performance is not credited - if not during the performance itself, then at least in the program. But that is another issue.

I appreciate that the fact that I perform for free doesn't give me the right to operate under a lower standard of ethics. This whole discussion was triggered by the desire to make sure I don't do that. I have a smaller budget than a pro, so need to be aware of the temptations!

@Ed. Thanks for the comments. I'm not agin modifying a performance. In fact, I can't imagine *not* doing it. I guess I was thinking that at some point it becomes a different performance, and then a new set of rules will kick in. SO I was tryoing to consider - same effect, different gimmick and different effect, same gimmick. I'm a bear with a small brain, and all this stuff is challenging!

As a result of what you wrote, Ed, I've just emailed one originator to ask if he is happy for me to use his 'trick' with my methods. He was happy for me to do so. Thanks for the suggestion. Sometimes the obvius is not obvious until pointed out. Thanks.

I guess this subject will go round and round in my head for some time, but lots of useful input here. Thanks guys.
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I'm fond of a lot of Jay Sankey's stuff. Often, he'll have free "how to" videos on his site. The methods are generally basic, but I like hearing his psychology behind why he formatted the routine the way he did: pacing, offbeats, where to draw attention, subtilties, and so forth.

There's a few of his marketed effects that I can figure out just by watching the demos. But I'm waiting until I can afford to buy any effect before I perform it for two reasons: (a) I think it's right; (b) I may be able to guess the method, but he's also worked out _why_ it needs to go "this" way and why "that" way doesn't work, and I'd rather listen to his experience then beat my head against dead ends while gaining my own experience!

I've seen several tricks where the origination is traced back as far as they were able to find it in the printed or video instructions. I really appreciate it; it gives me a sense of being a part of something very much bigger than myself.

Ed
twm
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I'm feeling a bit guilty that I haven't acknowledged everyones helpful responses to me query here. I hope people will accept that I have found every single response to be enormously helpful. I am still going through what many of you have written, and digesting it.
@Cyberqat - your clarity of the law of copyright, patent and tradmark was a superb starting point.
@rklew64 - As I mentioned to Ed, I have taken your advice and contacted one originator to test his reaction to my using his effect with a different method, and he was perfectly happy with the idea, so problem solved. Thanks for the sugggestion. Regarding your question 'Would you not perform something from a book you read that was checked out from a public library because you did not outright own that book.' I don't have a problem there. The copyright holders of books get paid by the library, do they not?

To everyone, a big thankyou for helping me start the process of understanding the gentlemans agreements that exist.
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Quote:

I faced this quandary myself recently with my self-developed paint-ball catch. I have no question that I would not have come up with it had I not seen Velocity performed. In particular, part of the method is something I recognized watching the performance and utilized myself. I had a short email discussion with Bob Solari by email a


I keep doing that and Im not sure why. To be celar its Bob Kohler, NOT Bob Solari. Kohler makes and sells it. Scott Alexander invented it.

Proper crediting is important.
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