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The world-famous magician Teller has secured a major victory in a Nevada Federal Court, winning his copyright suit against a copycat magician. Teller filed his copyright suit against Gerard Dogge, a Dutch magician who uploaded YouTube videos of himself performing Teller’s famous, and copyrighted, performance of “Shadows.” While this is not the route normally taken when someone has copied a magic trick, Teller still prevailed in his claim, leaving the future of copyright within this community of magicians uncertain.
Magic tricks themselves cannot be protected by copyright. The magicians protect each others’ tricks by blackballing those performers who infringe on another’s performance of an illusion or magic trick. Social norms followed by almost all magicians include giving credit to the inventor of a particular trick or illusion. However, a magician can receive copyright protection for “dramatic works” and “pantomimes,” giving the copyright holder exclusive rights to public performance. A dramatic work may contain a magic trick, but that does not mean that the dramatic work itself is still not subject to copyright protections. Since Teller had registered his copyright in 1983 and had not abandoned that right, Teller’s dramatic work still had all the protections of copyright law.
In order to prevail on his claim, Teller had to prove that Dogge had access to his copyrighted work and that his YouTube videos were substantially similar to his own “Shadows” performance. In the caption of the video, Dogge states that he “saw Shadows from Mr. Teller, the illusion, magic trick, on the internet on YouTube,” admitting that he had access to Teller’s copyrighted work. Applying a two-part analysis, the court determined that the two works are “nearly identical twins,” and “[t]he events and dramatic progression of these two works are nearly identical.” This coupled with the fact that a reasonable audience would think these two performances have the “same total concept and feel” supports the court’s holding that the works are substantially similar. Although Dogge tried to argue that the secret to his illusion differs from Teller’s illusion, the court only examines the observable elements of a particular work to determine if the works are substantially similar. So the secret which is not seen by the audience is not considered in the court’s analysis. Establishing access and substantial similarity is necessary to prevail on a claim of direct infringement of a copyright. Teller has done that here.
The next question becomes, where does this case leave the magic industry? Since legal remedies have not traditionally been used in the world of magic, it is unclear whether other magicians will use this route in the future. As technology is increasingly used in all aspects of life, magicians may resort to using legal avenues to protect magic tricks and illusions so that their illusions do not end up on the Internet, performed by a copycat magician. Although magicians have been pretty successful in stopping infringement using the social norms of their community, magicians may need to start registering for copyright protection of a distinct dramatic work or pantomime to fully protect what they have worked hard to create in certain situations: a unique dramatic work which may contain a magic trick or illusion.
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