Also, it's impossible to know whether or not an effect has been performed for "a long time." Half the stuff I use in my public shows is material that many have long forgotten. Just because we don't talk about effects on the Café or other forums and because they're no longer available in magic shops, doesn't mean they're not being done anywhere by anyone. The language used in all four points is so vague and subject to interpretation that they are virtually meaningless.

I am really surprised the editorial staff of a law review actually allowed this article to be published.

I think that when someone publishes an effect unless they make specific restrictions associated with the publication of the effect regarding it's use in film or television the implication is that you are buying the performance rights for all venues. You run into this in photography all the time. If I sell a photo to someone there is a negotiation over the rights of use of that photo. It may be for a single publication, or it may be unlimited use. It depends on the negotiation at the time of sale.

With a magic effect being published you are putting the secret out there for use by other performers. You are selling your performance rights unless otherwise specified. With comedians the sale of a joke does not require the comedian telling the purchased joke to credit the comedian who wrote the joke. The only exception to this is when it appears in print or television, in which case writing credit is usually attributed. It seems to me that the writing credit solution is an effective way of doing things for shows like Fool Us. In the event that a magician is not presenting an original effect of his/her own creation then a credit to the creator of the effect can be tacked onto the end of the show where the production credits are.

The really sticky part of this is the old adage that there is nothing new under the sun. It seems to me that when applying credit in your publication you have to do the best you can and be prepared for a tidal wave of people screaming at you for leaving out the guy who invented holding your pinky at a 45 degree angle in relation to the left side of an indeterminate direction.

It's not unethical to perform something you have purchased.

When it comes to publishing something similar to something someone else has published you need to ask yourself the hard question, "Would I scream at someone else for publishing this effect?"

I agree with the others about how vague and potentially misleading that is.

For instance number 2. "If a method has been widely shared"

Being widely shared doesn't imply consent from the person who created it. It just means it has been shared, not necessarily legally.

As for the original question, I've never heard of performers being obligated to credit the creators during the performance in any art.
Bands don't announce that a cover version of a song was written by.....
I suppose when a play is performed ithe writer is usually credited on a program though.

Total minefield.

It would be really good, though, if there was some sort of carefully crafted magical ethics document that most magi and societies agreed with, and which dealt specifically with the kind of issues often raised on this part of the Café.

There was a magician on Penn & Teller Fool Us who performed Wayne Houchin's Thread to an exact tee. Even starting off with the gypsy thread. He didn't fool Penn and Teller but Penn seemed to be under the impression that the magician came up with the idea. I think when someone appears on that show, they should be presenting an origional routine that they created. That's just my opinion.

A couple quick observations and opinions:

Regarding the 4 "industry norms" from Jared Sherlock, I too think they are too vague to be strictly adhered to, but perhaps we can agree to the "spirit of the suggestions" if not the precise language--his intention--and I agree with the general ideas as I interpret them. Number 4 has been singled out as ridiculous, but consider an example: a performer does his homework, studies the literature, and finds a wonderful effect in an 100 year old periodical, that's gathering dust and he revives it. This old thing that no one was doing turns out to be a wonderful piece of magic. Other magicians see it, admire it, and eventually discover the original source. Are they entitled to perform the effect without asking? Legally speaking they are certainly entitled. Inarguably. In my personal morality though legality is not the only consideration. Is it fair of me to simply take the thing he discovered and did the work on simply because after seeing him do it and only then being inspired to search, I can locate the original source? I don't think so. In my opinion, I must ask permission from the person who did the homework in the first place. He only found what was there for anyone to find, true, but I only recognized the value after all of his hard work and research. As number 4 says, I treat him as if he invented it. If he tells me he'd rather I didn't use it, I don't. Simple as that. Understand this is not a legal argument, it's an ethical stance based on my feeling about what's best for magic and for my brothers and sisters who perform it.

Many magicians are seeing the value of withholding certain rights when publishing or releasing material to the community. As long as it's stated up front, and not a surprise after the transaction, this is completely understandable and IMO, to be respected and not vilified. If someone is releasing material I like, but doesn't want me to do their creation on TV, I won't. A good example is Michael Weber's material. He always reserves television, broadcast, internet and theater rights. I know that (and so should anyone) when buying his material. Fair enough.

To answer what I think the original question was, in performance we needn't credit the creators. We are trying to make the most effective script for our audience, and that may not include history of effects or credits. In fact it rarely does. Publishing a similar effect is a different matter, since that is our written record and it is incumbent on the writer to give as much of the history and source material as possible.

Not saying what anyone else should think or do, just my subjective opinions.

SWN

However would you know for sure if the method you've discovered in an 100 year old book is the same as the person doing it now? And given it was published 100 years ago what real claim would anyone have over it now? What I mean is that I can find a way to make a handkerchief disappear in a number of old books, this does not give anyone from modern times the right to own the disappearance of a silk, or the cutting in half of a woman, or any effect really. If it's been published to the public then how can anyone claim new ownership of it unless they alter it substantially, and even then do they own the trick or just their own method and presentation?

My (somewhat threadbare) understanding of legalities leads me to beleive it's the performance style or patter that you hold the rights to, not the effect itself.
If I discover a way to do an effect Copperfield does but not the way he does it, then how can he claim it's his? Unless I copy his style or script then I am doing my own effect surely? For example his flying through the air, if I can find a way to do this, then what's to stop me? As long as I don't copy his act outright?

Here's an interesting article

http://www.bna.com/magic-tricks-not-n17179889109/

Google

Teller wins lawsuit

And you'll find this story is covered in much depth.

On the surface I don't think it's necessary, but as a sign of respect for the creator and the community why wouldn't you? I doubt you'll be raked over the coals for performing a purchased effect in a paying gig, but in this age of rapid communication why wouldn't you drop them a line if not just to thank them? Thank them for creating, mention that you're performing their effect for friends at school, or on TV, or wherever. Heck, you might make a close friend out of it. Stranger things have happened. If you're a professional with a website why not have a special page of acknowledgements that links to their website. If you're involved in TV specials request to have their name in the credits under Special Thanks.

Even though I think it's a "given" that in most cases a purchase transfers performance rights, you can and probably should go out of your way to give someone props in whatever way you can, especially if that person's creative mind and product has aided you professionally.

I hardly see how this is practical. I mean if one single effect is over 50% of the routine/act, then I might see crediting being fitting. But I don't even know who came up with most of the sleights I use and I use about 20 different one's in 3 minute routine... If I credit anyone it will probably be magicians who actually inspired me for the concept not the methods.