Magic and Copyright

A federal court in Nevada published a ruling on Thursday in favor of the magician Teller over a YouTube video showing one of his signature magic tricks, Shadows.

Shadows essentially consists of a spotlight trained on a bud vase containing a rose. The light falls in a such a manner that the shadow of the real rose is projected onto a white screen positioned some distance behind it. Teller then enters the otherwise still scene with a large knife and proceeds to use the knife to dramatically sever the leaves and petals of the rose’s shadow on the screen slowly, one-by-one, whereupon the corresponding leaves of the real rose sitting in the vase fall to the ground, breaking from the stem at exactly the point where Teller cut the shadow projected on the screen behind it.

Dogge – related to Doge?
…probably not.

Penn and Teller both said that no one would figure out how it was accomplished. A Dutch magician Dogge posted a video to YouTube showing himself performing Shadows. He also offered to teach the trick to anyone for around $3,000.

Teller, famous for rarely speaking, was not laughing. He sued for copyright infringement.

But first he’d have to find the rival magician.

Teller went to lengths to punish Dogge for copyright infringement. Literally. Teller had to hire a private investigator to locate Dogge to serve papers to him, and for a while, Dogge evaded service in Belgium, Spain and other European countries. So Teller did a neat new trick. He emailed the court papers to Dogge and managed to convince the judge that his imitator had opened them. It was enough for the judge to allow the lawsuit to proceed. [Hollywood Reporter]

Once he was able to accomplish that trick, the court could give us a ruling on the merits – or at least as much as we can get at the current procedural hurdle.

The judge said that copyright did not protect how the magic trick worked. That would be a utility patent or trade secret if anything. However, the judge did say that pantomimes can be protected by copyright – like any fixed dramatic performance.

Dogge defended himself, among other ways, by claiming that his performance was not substantially similar to Teller’s trick in how the magic part of it worked. In other words, he said it was dissimilar, but only in ways no one watching the trick could see! The judge was less than generous in dealing with this argument:

By arguing that the secret to his illusion is different than Teller’s, Dogge implicitly argues about aspects of the performance that are not perceivable by the audience,” he writes. “In discerning substantial similarity, the court compares only the observable elements of the works in question. Therefore, whether Dogge uses Teller’s method, a technique known only by various holy men of the Himalayas, or even real magic is irrelevant, as the performances appear identical to an ordinary observer.

Teller is not the first magician to sue over the revelation of a trick, but it is not that common. The magic industry, like the comedy industry, relies on industry norms and punishments more frequently than courts or the law. Like comedians who steal material, magicians who reveal tricks are often blackballed from most paying establishments.