Hocus Pocus! Is there copyright in magic?

Magician Teller while performing Shadows

As reported by celebrity gossip and entertainment news website TMZ, Teller of the American illusionist duo Penn & Teller has brought a lawsuit against Dutch magician and current Spain resident Gerard Bakardy claiming, among other things, copyright infringement in his dramatic work Shadows.

Penn & Teller have enjoyed major national and worldwide success, including Broadway shows, world tours, Emmy-winning TV specials, appearances on popular shows such as those of David Letterman and Jay Leno, as well as their own acclaimed TV series Penn & Teller: Bullshit!.

At the moment, the duo is busy with Las Vegas live performances of their Show, which has been running for eleven years.

Teller has created many tricks for the Show, including a "highly innovative and unusual dramatic work" known as Shadows, for which he obtained a US copyright registration in 1983.

As explained in the complaint brought before the US District Court for the District of Nevada, 

"Shadows" essentially consists of a spot light trained on a bud vase containing a rose. The light falls in 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.

Another case when magic was spoiled:
the wonderful Wizard of Oz 

Shadows is said to be "one of the rare plots in the canon of 20th Century magic and is Teller's principal claim to fame in magic history".

Apparently Bakardy, after seeing the Show in Las Vegas, created a magic routine which he called The Rose & Her Shadow. In addition, he recorded a video of himself performing the trick and uploaded it on YouTube, with an adv offering to sell his magic trick to consumers at the approximate price of $3,000. In the video, Bakardy also says (in Dutch apparently), that he “has seen the great Penn & Teller performing a similar trick and now [he is] very happy to share [his own] version.”

Last March, Teller found the video and instructed his attorneys to send a DMCA takedown notice to YouTube, which eventually removed the video. In parallel to this, the illusionist approached Bakardy to inform him that The Rose & Her Shadow infringed his own copyright in Shadows. However, no agreement was reached at that time.

Today Toto would certainly upload
a video on YouTube to expose the Wizard of Oz,
instead of just pulling back the curtain

Now it's up to the Court to say - inter alia - whether (a) copyright subsists in Shadows as a dramatic work as per §102(a) of the US Copyright Act and, if so, (b) whether The Rose & Her Shadow is tantamount to an infringement of copyright in Teller's work.

A very interesting analysis of this fascinating case can be found on James Grimmelmann's The Laboratorium. Prof Grimmlemann recalls that the leading case as far as magic and copyright are concerned is 2003 Ninth Circuit’s decision in Rice vs Fox Broadcasting. This was a copyright infringement case brought unsuccessfully by the owner of copyright in The Mystery Magician (a home video which showed how various tricks were done) against Fox, which aired a series of how-tricks-are-done TV specials. The Ninth Circuit, confirming the judgment of the district court, held that what had been taken by the defendant was either foreclosed by the limiting doctrines of merger and scènes à faire, or too abstract to constitute copyright infringement.

Let’s wait and see whether Teller’s lawsuit has a better fate than The Mystery Magician.