Magic Tricks and Intellectual Property Laws

The BBC has an examination of the intersection of magic tricks and intellectual property laws.

Magic has a long history of magicians both protecting their methods and ripping off the illusions and methods they can figure out.

There have been some pretty brazen examples in the past – perhaps none more so than the case involving the world-famous US magician Harry Kellar at the end of the 19th Century. He was so keen to work out how British magician John Nevil Maskelyne was doing his levitations, that he went to the show several times – armed with binoculars.

When that failed, he marched right up to stage at the key moment to take a peek. He still couldn’t work it out, and ended up bribing another magician at the theatre to provide him with sketches. Kellar performed this particular act around the world for years afterwards.

The article notes that for a number of reasons, magic tricks fall outside of most intellectual property laws. The obvious possibility is that how an illusion is created is a sort of trade secret, but in most countries it is incumbent about a company or individual to prevent a trade secret from becoming widely known which, the BBC notes, is a bit difficult for magicians giving regular public performances.

Magicians could seek–and a few have obtained–patents on their inventions, but of course the problem there is that the mechanism of the invention has to be published with the patent. The BBC cites on magician who did patent an illusion only to find that the legal costs for protecting the patent from infringers was too high to make this an effective strategy.

According to the BBC article, a Netherlands court found that while magic tricks themselves were not protected, the particulars of a given magician’s stage show potentially were.

In the United States, there is currently a pending lawsuit filed by Raymond Teller, of Penn and Teller, against magician Gerard Dogge. According to a Hollywood Reporter story on the lawsuit,

Teller accuses Dutch entertainer Gerard Dogge of ripping off his copyrighted magic piece called Shadows, putting it on YouTube as an illusion entitled The Rose & Her Shadow, and offering to reveal the secrets for $3,050. The litigation promised to help determine the level of protection that magicians have over their tricks, and to prevail, Teller would need to show that his trick is eligible for copyright protection and that Dogge’s piece is substantially similar. To do that, he’ll first need to perform the hard chore of showing that Shadows is “fixed in a tangible medium of expression from which the work can be performed,” as the U.S. Copyright Office requires.

Unfortunately, it looks unlikely that Dogge will actually show up for the civil trial, meaning the court won’t likely get to rule on the underlying copyright claims.

Don’t Click *This* Link If You Live Between *These* Imaginary Lines

In 1920, H.G. Wells published The Outline of History — Wells’ take on the unfolding of human civilization that was especially harsh on religion and superstition. In response, Hilaire Belloc, a devout Roman Catholic, wrote a series of articles attacking The Outline of History which he compiled into 1926′s  A Companion to Mr. Wells’s “Outline of History”. Wells responded in the same year with a book-length rant, Mr. Belloc Objects to “The Outline of History”. Both books are apparently mostly invective that shed little light on the issues actually being discussed.

I wanted to read Wells’ response to Belloc, and it turns out the book can be for free legally on the Internet. But there’s a slight problem –  I live between the series of imaginary lines that constitutes the United States. As the University of Pennsylvania’s website explains,

The title you have selected (Mr. Belloc Objects to “The Outline of History”) is a post-1922 publication by an author who died more than 50 years ago. Such titles are in the public domain in many countries, particularly those outside the US and Europe. However, this title most likely remains copyrighted under United States law, where works copyrighted in 1923 or later can remain under copyright for up to 95 years after publication. It may also be copyrighted in European Union countries and other countries where copyrights can last longer than 50 years past the author’s death. (Europe, for instance, uses a life plus 70 years term.) Follow this link for more details on copyright laws of various countries. Below, we provide author death dates and other edition information, so that you can check this information against the terms of your country’s copyright law.

Do NOT download or read this book online if you or your system are in the United States, or in another country where copyrights for authors with the dates shown below have not expired. The author’s estate and publishers still retain rights to control distribution and use of the work in those countries.

Since the maintainer of this index resides in the United States, he cannot fully check these links for validity. Please inform onlinebooks@pobox.upenn.edu if any of the links do not work. You may also be interested in the more than 1 million books listed on The Online Books Page that can be legally read online or downloaded in the US.

I love the last paragraph — that the University of Pennsylvania can’t legally check to see if the link works or not. I have to confess, I went ahead and broke international copyright law and clicked on through to the link (I did think about those Foster’s beer commercials first, though, so its almost like I was in Australia anyway.)

So do you, dear reader, dare to follow my scofflaw ways? If so, H.G. Wells awaits.

Creative Commons Public Domain Mark

Creative Commons now has a Public Domain Mark designed for designating works for which there is no known copyright for anywhere in the world. In a press release announcing the creation of the Public Domain Mark, Creative Common said,

The Public Domain Mark in its current form is intended for use with works that are free of known copyright around the world, primarily old works that are beyond the reach of copyright in all jurisdictions. We have already started mapping the next phases of our public domain work, which will look at ways to identify and mark works that are in the public domain in a limited number of countries.

Creative Commons already has a license for creators to waive all rights for works that are currently covered by copyright in some jurisdiction or another: the CC0 license.

Libraries Are Killing the Publishing Industry

GoToHellMan recently published a hilarious parody of publisher complaints about piracy Offline Book “Lending” Costs U.S. Publishers Nearly $1 Trillion,

Hot on the heels of the story in Publisher’s Weekly that “publishers could be losing out on as much $3 billion to online book piracy” comes a sudden realization of a much larger threat to the viability of the book industry. Apparently, over 2 billion books were “loaned” last year by a cabal of organizations found in nearly every American city and town. Using the same advanced projective mathematics used in the study cited by Publishers Weekly, Go To Hellman has computed that publishers could be losing sales opportunities totaling over $100 Billion per year, losses which extend back to at least the year 2000. These lost sales dwarf the online piracy reported yesterday, and indeed, even the global book publishing business itself.

From what we’ve been able to piece together, the book “lending” takes place in “libraries”. On entering one of these dens, patrons may view a dazzling array of books, periodicals, even CDs and DVDs, all available to anyone willing to disclose valuable personal information in exchange for a “card”. But there is an ominous silence pervading these ersatz sanctuaries, enforced by the stern demeanor of staff and the glares of other patrons. Although there’s no admission charge and it doesn’t cost anything to borrow a book, there’s always the threat of an onerous overdue bill for the hapless borrower who forgets to continue the cycle of not paying for copyrighted material.

The whole thing is hilarious and well worth reading. Keep it in mind the next time you read one of those idiotic “piracy cost X industry $Y hundred million.”

Stop Embedding My YouTube Videos!

This Weblog Tools Collection post by Mark Ghosh from earlier this year had me shaking my head.

The short version: YouTube users upload videos and don’t alter privacy settings, so YouTube displays an embed code. Ghosh and his cohorts embed them on one of their sites. Angry YouTube users then email and complain that Ghosh, et al are infringing on their content! Ghosh wondered,

To take this one step further, if you display embed code on your blog or website (think ShareThis), are you implicitly allowing your content (whatever the embed allows direct publish access to) to be republished elsewhere? If you do not allow sharing of your content without permission, are you just displaying certain types of social media tools that prevent wholesale copying of content? I know I personally never factored this into my thought process. Anyone else run into these issues? I wonder what the traditional media with electronic outlets are doing?

Interesting. Personally I would think the person clueless enough not to see the embed code on their own damn video is probably not functionally intelligent enough to retain a lawyer for a lawsuit, so I would just ignore these. But that’s just me.

Fortunately enough, the EFF addressed a related issue back in 2007 in the context of copyright infringement — what if I embed a YouTube video that is ultimately found to be infringing,

Taking a look at the actual code makes one thing obvious: no copy of the YouTube video is being stored on your server (only the HTML code for the embed). The video stays on, and is streamed from, YouTube’s servers.

That makes the embedded YouTube video essentially indistinguishable from the in-line image links that are used all over the Web, including in Google’s Image Search. In the recent Perfect 10 v. Amazon ruling, the Ninth Circuit made it very clear that where in-line links are concerned, there is absolutely no direct copyright infringement liability. So, for purposes of direct infringement, the answer to one question will generally resolve the issue: where is the copy hosted?

On the other hand, I can imagine a number of cases where I would want not want my YouTube video embedded. One can imagine, for example, a porn splog that embedded a popular video simply to throw up ads around it. Maybe those already exist and I’m behind the curve, but regardless those sort of sites would seem to violate other parts of YouTube’s TOS.

The Copyright Status of Robert E. Howard’s Works

If you want to understand just how complicated it is to determine whether or not a work is still copyrighted in the United States, check out Paul Herman’s analysis of the copyright status of works by Robert E. Howard who died in 1936 but had many works published posthumously (in some cases, several decades after his death).

The United States Copyright Office

All Copyright Office records prior to 1978 are currently available only in hardcopy at the Copyright Office Search Room in Washington DC. No online access is avialable. Over the course of several visits, a review has been made of the US Copyright Office records with regard to REH works first published prior to 1964, looking for original registrations and renewal registrations, to see if a valid copyright could still exist. A review of notices within the actual original publications has not been completed yet, and as stated earlier, if notice is flawed, the work could still be injected into the PD, regardless of having proper registration and renewal.

The result of this review was that a large number of REH works subject to the rules of the 1909 Act either did not have original registrations, or no renewal registrations were filed where required. These works are therefore by law in the PD. A listing of these PD works is provided below.

Renewal Problems

An additional legal matter, only select classes of people and entities can file for the renewals. The courts have almost always said that if the renewal is made by an incorrect entity, the renewal is invalid, and the work PD. About the only exception is when the only error is leaving a joint author off the renewal, or if it was impossible for a person to know they were a rightful renewer (such as with an illegitimate child with no knowledge of the parent). Failure to file when the time was right is no excuse, nor is ignorance of the law.

A number of REH works had renewals filed by an incorrect person or entity. Because of this, more works are also PD. Of special interest, the renewals filed with regard to Weird Tales are of interest, and it may be that while at first blush they correct party did not file the renewals, it may be that it can be shown that they in fact were. The current owners are working hard on this issue. Accordingly, I have removed those works from this list, until some sort of resolution is reached. Regardless, a fair portion of the WT works are still PD, for failure to file any renewals at all. Further, due to no registrations and/or no renewals, a great amount of the poetry that REH sold or otherwise had published during his lifetime is PD.

Got that? In some cases whether or not a work is in the public domain in the United States comes down to technicalities in how the registration renewal was filed (or not filed). The cost of tracking that sort of information down is one of the main reasons there are so many orphan works — works that no one is actively publishing or exploiting, but that which remain out of print because of the difficulties in establishing whether or not they are truly in the public domain.

On the other hand, the European Union has created a special law that allows works in the public domain to gain additional copyright periods,

In March, 2007, Paradox published a very small print run of a volume titled THE LAST OF THE TRUNK OCH BREV I URVAL. This was published in Sweden, with a print run of eleven copies. As with the publication of a tiny print run of a couple volumes of material by the previous owners in 2002, this was an attempt to take advantage of a special copyright law. In this case, in the European Union, there is a rule regarding works that have gone PD without ever being published. That rule states that if the owner of such a work gets that work into print first in the European Union, they will be granted a 25-year “publication right”, which for most purposes is the same as a copyright. This new book by Paradox attempts to include all the previous unpublished works of REH, prose, poetry and letters, and appears to meet all requirements. Hence, most or all of the works listed below as PD in the US that were unpublished in the US as of 1/1/2006 are likely back under copyright in most of Europe, for the next 25 years.

But at least they’ll enter the public domain again in 2031. As Herman notes, some of Howard’s work — remember, written in or before 1936 — will not enter the public domain in the United States until 2072! Assuming, of course, there are no further copyright extensions.