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DavidThomas
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I wanted to start a discussion about when an illusion becomes public domain versus how long a designer or inventor retains rights to a creation.

The reality is: I struggle with this and am not sure how I feel. I would love to have input from all.

In the United States, our economic system is based on an “inventor” having the ability to profit from their ideas for a period of time. After that time period it becomes “public domain” allowing others to build on that idea.

In your opinion what is the time period before an illusion becomes within the "public domain"?
David Thomas
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ClintonMagus
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My opinion on this is if you have to ask, you probably shouldn't do it. There is oftentimes a difference between what's "legal" and what's "right".
Things are more like they are today than they've ever been before...
DavidThomas
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Hi Clinton,

Is the Ziz Zag a public domain illusion?
David Thomas
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makeupguy
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David:

I think this depends a lot on the illusion. If it's a totally new illusion, or a twist SO DIFFERENT that it seems like a new illusion, it should remain the domain of the performer/inventor ONLY until their death or perhaps until it's been out of the routine of the original performer for say, 20 years(?) Does that sound fair?


I'm not EVER condoning obvious ripoffs... and there's a HUGE difference between building props for sale and building props for your own show... but there have been times where a base from one illusion has been put under a box with another illusion, and a new paint job has been added and and the magician/inventor/ builder has claimed ownership. If that's the case, comedians, artists, and industrial designers are in trouble.

However, I was listening to an interview on the Magic Newswire the other day with Johnny Gaughn. He said the whole "public domain vs. ownership" thing has gotten WAY out of hand. If each and every minor "improvement" or "twist" was actually given ownership, and a magician wants to combine 2 or more effects, the line of people holding out their hands for payment would become VAST.

There is an oddly crooked line, instead of protecting the props why not send ownership in the direction that it SHOULD GO! That is not the protection of props, but the protection of routines. If I see one more magician copy David Copperfield's Origami box, I'm going to vomit. Sure, even if you pay the full price for the prop, should you rip off DC's routine, down to the music and the costume change? NO, OF COURSE NOT. Honestly, I'd rather see them copy Doug Henning's, which was a far better presentation of the prop.

It's the routines that need protecting. A prop is just a prop... but a routine will make or break a magician or a whole show.
Matt Adams
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Quote:
On 2012-12-13 10:42, DavidThomas wrote:
Hi Clinton,

Is the Ziz Zag a public domain illusion?


David, this resource might be able to assist. http://www.illusionrepository.com

Good luck with your research!
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DavidThomas
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Hi Matt,

The Repository and Taylor Reeds thread is the reason I am bringing this issue up for discussion. On the Repository there are many illusions i.e. Zig Zag, Mis-Made Lady, etc. that are considered Public Domain, while others like Origami, Head Mover, etc. are not.

I am trying to get a fuller understanding from all on what is the criteria that makes an illusion "public domain".

Thanks!
David Thomas
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ClintonMagus
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Quote:
On 2012-12-13 10:42, DavidThomas wrote:
Hi Clinton,

Is the Ziz Zag a public domain illusion?


Out of respect for Robert Harbin, I don't consider Zig Zag public domain, but many do.
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David Charvet
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In most cases, if the creator/inventor is still living, or rights were assigned to his/her heirs or a third party prior to their death, then the illusion or prop is NOT in the public domain. The creator (or their representative) should be contacted in all cases and rights worked out on an individual basis.

In the case of the Zig Zag, it's a slippery slope. Originally, when Harbin published "Magic of Robert Harbin" only those who purchased the book from Harbin had the right to construct a Zig Zag. Harbin did authorize several performers and builders to build copies during his lifetime.

After Harbin's death, the Magic Circle acquired the rights to Harbin's book. So, in theory, the Magic Circle should be the one to assign the rights to persons wanting to build a Zig Zag. But, so many performers and builders disregarded Harbin's wishes while he was alive that there was no way to enforce his original intentions, without a lot of litigation - and Harbin was not a litigious person (plus it would have bankrupted him to try to sue everyone who stole the trick.) Still, was it right for people to steal the Zig Zag? No. It's all about "ethics." Either you've got them, or you don't.
magicelam
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David, I say build what you want for your show as long as it does the prop justice. So unless you're a master craftsman of sorts, I wouldn't try to tackle the stuff that needs all of the extra subtleties, such as the Origami. But if you wanna knock out a shadow box, go for it! And I say this for YOUR show.

I wouldn't build anything to sell, ever. Too much grey area.
Mike
wanmagic
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I think if you invent something for the sole purpose of your show or maybe another then it is yours to do as you feel. If you have no intention to sell or market but have something original to show then keep it forever.

However, if you decided to market to the fraternity then I think there should be a timeline to your creation. It is the same as anything else marketed in our country ie generic versus name brand meds.

If you allowed more builders and markets to build and distribute your idea later it would only mean more profit for you. Like if the illusion is 10 years old or more allow it to be purchased at a lower right fee and widely distribute it. You will make more doing this and you invention and idea will run full course. IMO.
Servante
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Got this from the government site:
Design patents last 14 years from the date you are granted the patent. Note: Patents in force on June 8 and patents issued thereafter on applications filed prior to June 8, 1995 automatically have a term that is the greater of the twenty-year term discussed above or seventeen-years from the patent grant.

Now, you can COPYRIGHT the printed plans, and a copyright lasts for the author's life plus 70 years...but that only protects the hard copy plan, not the design itself. I own a good many copyrights, so I know about those. I own no patents.

There would also be an ethical aspect to all of this, of course.

-Philip
David Charvet
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Why is it so difficult to contact the living creator/inventor and pay for the rights and purchase the prop from their authorized builder?

Is it because we all want these neat original illusions we see in Vegas and on TV and figure because we know how they're done we can just build it ourselves? Or because we can't afford the price from the authorized builder nor understand why they have to charge what they do?

Both the creator and builder are entitled to be compensated for their idea, R&D, materials, labor, overhead, etc. Just because you think there are only about $500 in materials in a prop and you feel being charged $10,000 is too much, it still does not give you the right to build it "just because you can." Why is this so hard to understand?

Again, I will say, it all boils down to "ethics." And something Stan Kramien told me years ago: "Magicians have the 'one more illusion syndrome.' They all think that 'one more illusion' will make them a star. NOT TRUE."
DavidThomas
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David, I do not disagree with you, but I still have my original question.

What makes an illusion become in the "public domain" ?

The Twister, Mis Made, Crystal Casket, and a multitude of others. were invented by someone and now are considered by most magicians and buliders "public domain". What makes these different then other illusions that are not considered "public domain"?
David Thomas
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MagicErik
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Legally no illusion is protected. You can pay for ethical rights. But currently no illusion is legally protected and you can basically build whatever you want. By law and patenting and copyrights all illusions are in public domain.

However we illusionists find it right if you pay the original creator the money he deserves. It is starting to become a horrible misconception that there is legally any protection for illusions. Among magicians it's the ethical rights.

Please do some investigation about this and make sure you understand what I said. If I want to build my own Suspended Animation or Origami Box then there is no judge in the world capable of stopping me.. The same applies to tablets, cars, computers, mobile phones, teacups, chewing gum... If an illusion is patented all you have to do is alter the apparatus a little, so that it is different, and it is all yours.

It would not make me popular among fellow magicians and it is not right to not pay the persons who invested time and money in developing these illusions, but legally no one in the world could stop me. So if you see David Copperfield doing a trick, by law you can build your own. By ethics its not done.

But amazingly enough, so far we as magic-family have not succeeded in making our own agreements for these ethical rights. And global magic societies haven't done anything in this field either. So basically we keep getting these discussions about rights simply because we didn't make rules about this.

And that means that until we have some guidelines it is more or less what each person thinks about this himself.
EVI
David Charvet
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Erik - It is not true when you say "legally no illusion is protected." The prime example being "Flying" which is protected by U.S. patent # 5,354,238, held by John Gaughan since 1994. John has not licensed the effect to any other builder.

Intellectual property laws get a bit trickier (no pun intended.) The recent case with Teller and his "Shadows" effect is a prime example. It is more a case of copyright law and not patent law. The patter, storyline, plot, presentation and decoration of a prop can all be protected by copyright.

To answer David's original question, there is no hard and fast rule that makes an illusion "public domain." The general rule of thumb I would use is that (1.) The creator is dead without assigning rights to another individual or entity. (2.) It has been performed over a period of years by many individuals. (I'll leave it to you to determine the number of years and number of performers.)

Prime examples of public domain illusions are:
Aga Levitation
Asrah Levitation
Doll House Illusion
Temple of Benares
Substitution Trunk
Sword Basket
Modern Cabinet
Sawing In Half
Crystal Casket
and the list goes on ....

Basically, what are generally regarded as "classics" are for the most-part, in the public domain.

That said, Chuck Jones should be credited for the "Mismade Girl" and the combination of the Head Twister and body cabinet is credited to Franz Harary and several others, all of whom are living. The shoulder-top head twister (without the body cabinet) is a Joe Karson idea and would be considered in the public domain.

Yes, it is difficult to determine who has the right to "what" at certain times, but it is not impossible. Magic is too small of a field to be cavalier and say "I can build anything I want." Even if you believe it's your legal right, you still have to live with the consequences in a very small (and vocal) group. Ultimately, the choice is yours. If you doubt this, just look into what happened to Jim Sommers when he built and performed his version of Harbin's Zig Zag illusion back in 1968. Jim is still feeling repercussions from that decision over 40 years later.

A reputable builder (Bill Smith, Wellington, Owen, etc. etc.) can also steer you in the right direction regarding public domain effects.
magicelam
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What happened to Jim Sommers?
Mike
Dennis Loomis
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There is some controversy over the origin of the Mis-Made Girl. Yes, Chuck Jones claims it, but then so does Bev Begeron. But it was probably Doug Henning's performances of it that made it so popular.

Dennis Loomis
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Dennis Loomis
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Sommers built a version of the Zig Zag before almost anyone else on the North American Continent did. His was not authorized. He had seen Harbin do it on television and made some sketches. He didn't even know about the sl*** mechanism. He performed it at Abbott's. People in the know jumped all over him in the magic literature with much discussion about the rip-off in the New Tops magazine. Mike Caveney wrote a full article about this situation.

Dennis Loomis
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Dennis Loomis
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If you want to read more about the history of the Zig Zag, the contributions which Doug Henning and I made to it, and the Sommers controversy, I wrote an article on it which is in the March 2009 issue of MUM magazine.

Dennis Loomis

P. S. Here's a picture of my Zig Zag:
Image
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Dennis Loomis
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Whoops, sorry about the size of that picture. I didn't check it out before posting.
Dennis Loomis
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