It turns out that magicians, masters of illusion and sleight of hand, may use their skills of evasion to avoid being served with a lawsuit. At least that is evidenced by the latest, strange development in a case involving one mysterious magic trick, the boundaries of copyright law, and shadows on a screen.
It all began with one astounding trick by Raymond Teller, of Penn and Teller fame. In this act, entitled “Shadows“, a vase filled with flowers stands on a table in front of a screen. A spotlight casts a shadow of the flowers onto the screen, and when Teller uses a knife to cut the flowers’ shadow on the screen, the corresponding part of the real flowers are cut simultaneously. Some consider it one of the most impressive magic tricks in the world. However, a Dutch magician named Gerard Dogge posted a Youtube video of himself performing the trick, and offered to reveal the “how-to” behind the trick for $3,050. Teller filed suit in April 2012, claiming copyright infringement and unfair competition under federal statute.
But according to Teller, he is not suing Dogge to protect the secret behind mastering the trick. Teller points out that over the years he has actually used three different methods to perform Shadows, though he will not reveal his third method, the one he currently uses. Instead, Teller is suing to protect the “magic” – to prevent his trick from becoming an ordinary performance by many.
Whether Teller actually has a legitimate copyright in his magic trick is another issue. In 1983 he wrote out the details of the trick and registered it with the Copyright Office. However, it is a fundamental distinction of copyright law that one cannot copyright ideas, but only the expression of those ideas. Perhaps Teller could try to seek copyright protection for Shadows as a pantomime or choreographic work, both of which are protected under the Copyright Act.
Recently, in February of this year, U.S. District Judge James Mahan provided an update on the case, ruling on several motions, and noting that Dogge has still evaded personal service and cannot be located in Europe, though Teller can prove that Dogge opened some court papers via email. Additionally, Dogge has been in contact with the court, in one instance to ask that the jury be comprised of only magicians (shockingly, this request was denied). Dogge is apparently now suing Teller in Belgium for defamation.
Despite the fact that Dogge continues to evade personal service, the case continues, and should it go to trial it will certainly be a seminal case in determining the boundaries of copyright law regarding the protection of magic tricks.
– Katharine Skinner
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Is this like an “Alliance of Magicians” situation a la Arrested Development?
The trade secret claim would be interesting. The general rule is (1) the info is a secret and (2) the protector takes adequate steps to keep it a secret (if I remember the general law).
If Teller told a competitor, Dogge, how to perform the trick, that could violate (2). If on the other hand Dogge independently figured out how to perform the trick a certain way and then told everyone how to do it his way, that wouldn’t run afoul of trade secret protection (if I recall, you can independently discover the information yourself).
What an interesting article, Katharine!
Upon reading, I immediately wondered why Teller decided to bring suit under the Copyright Act, rather than trademark or trade secret law due to the limitations of copyright (the idea-expression dichotomy). Teller certainly uses the trick “in commerce” (in his shows) and the trick would quite possibly be considered appropriate subject-matter under the liberal trademark definition of the Lanham Act. Furthermore, while trade secret protection is often difficult to establish and previous disclosure of the trick when registered in 1983 with the Copyright Office may prove to be an obstacle to protection, a trade secret claim might also be potentially viable for Teller.
Regardless of the area of IP that Teller ultimately relies upon, I also have to wonder about the implications of Dogge’s nationality. As far as I know, copyright, trademark, and trade secret law all operate territorially, and I’m not sure how Dogge’s status as Dutch would affect the application of US IP law on his YouTube offer.