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.

Is Intellectual Property Murder?

Kevin Carson has a provocatively titled article — Intellectual Property Is Murder — looking at the likely impacts of data exclusivity requirements on drug applications in India that are a result of trade agreements with the European Union.

“Data exclusivity” means that clinical trials conducted before marketing by the company that originally produced the drug cannot be applied to meet government safety or efficacy requirements for the generic version. Each separate company that wants to market a generic version of a patented drug will first have to conduct its own clinical trials as a precondition. That directly contradicts one of the arguments commonly put forward by patent apologists — that patents are an antidote to trade secrets because they require openness as a condition of obtaining a patent.

“Data exclusivity” is a death sentence not only for those in India who can’t afford to pay tribute to the owners of state-granted patent monopolies, but also for the people of such countries as South Africa and Brazil, where the availability of cheap medicine for treating HIV depends on the output of India’s generic drug industry.

Carson also does a nice skewering of traditional big pharma justifications for patent protection of medication (although some of his arguments are a result less of patent protection than the unintended consequences of the drug approval process).

Battle Vs. Chess Killed Off by Trademark Lawsuit

So I’m probably one of four people in the world who cared, but last Fall promotional material started appearing for an XBox 360 game produced by SouthPeak Games called “Battle vs. Chess.” In fact, Official XBox Magazine actually published a review of the game in their Holiday 2010 issue, saying,

The game’s core chess experience is outstanding, but where it really takes off is in its variations, many of which makes chess feel brand-new. One mode couples fog of war with random piece placement . .

Then the game’s release date kept being pushed back, and finally Gamestop and other retailers were saying it had been canceled. Finding information on why the game was canceled or delayed has not been easy, but apparently Interplay filed a complaint that the game’s title was too similar to its Battle Chess trademark.

On October 26, 2010, Interplay filed the following report with the SEC,

Item 8.01

OTHER EVENTS

INTERPLAY ENTERTAINMENT CORP. FILES TRADEMARK INFRINGEMENT LAWSUITAND OBTAINS PRELIMINARY INJUNCTION TO PROTECT ITS BATTLE CHESS MARK
The Company filed a lawsuit against TopWare Interactive, Inc. to enjoin infringement of the Company’s federally registered Battle Chess trademark and to recover damages.  On October 21, 2010, the United States District Court, Central District of California, determined preliminarily that TopWare’s use of “Battle vs. Chess” in conjunction with a chess video game is confusingly similar to Battle Chess.  The Court issued a preliminary injunction prohibiting use of “Battle vs. Chess” by TopWare, its officers, directors, affiliated companies, and those acting in concert with the foregoing.  “Battle vs. Chess” was to be co-published and distributed in the U.S. by SouthPeak Interactive Corporation.  Following the ruling, the Company will continue to protect  its intellectual property rights in the Battle Chess trademark against TopWare and others who are or may be contributing to the alleged infringement.

On the one hand, this is ridiculous. Interplay has not published a game with the Battle Chess name since 1994. On the other hand, how did SouthPeak Games and publisher TopWare not do even a minimal Google search on “Battle vs. Chess” which would have revealed the very similar name of the Interplay game before they got to the point where the game was actually finished?

The only thing certain in the high stakes world of video game development is the preponderance of poor business decisions.

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.”