Nevada judge puts a little bit of magic into copyright

Teller's trick

Just under a year ago we blogged about magic tricks and copyright, and noted then that Raymond Teller (the ever silent Teller of Penn & Teller fame) had filed a law suit in 2012 in Nevada against a Dutch (or is he Belgian?) magician, Gerard Bakardy (who seems also to be a certain 'Gerard Dogge') who Teller claimed had stolen his four decades old "Shadows" trick - in which he cuts the shadow of a rose, causing petals to fall off of the real rose that is casting the shadow.  Eleonora posted an earlier blog on the same case back in 2012.

Mr Bakardy posted a video of his own version of the illusion, called "The Rose & Her Shadow" on YouTube, which was then taken down (after it seems Teller issued a DMCA takedown notice) and was selling the secret to the illusion in the form of a kit for $3,050 to anyone who wanted to learn about Teller's illusion. Mr Teller based his claim for infringement of his dramatic copyright on a registration of his illusion at the US Copyright Office, made back in 1983 but the matter of copyright in magic tricks is not certain at all and the court had to decide 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.

Teller performs his trick

Well, despite an initial vanishing act all of his own, Dogge/Bakardy has now lost the case after it seems a federal judge was none to impressed with the series of defences he ran. Initial run-ins with the court included:

- Dogge/Bakardy reportedly filing an excerpt of pornography and asking it to be filed under seal.

- asking for a jury made up entirely of magicians. 

- pleading that “[m]agicians are like clowns, they only serve to entertain. Obviously stealing from each other is out of the question, and this has not happened here.”

Billboard reports on the four pronged defence that Dogge/Bakardy eventually ran with:

- His first defence was that a magic trick was not copyrightable.

- Secondly the any copyright that might have existed had been "abandoned" as many others were attempting the same trick (and Teller didn’t sue them!) 

- Thirdly, that as Teller’s partner, Penn Jillette, proclaimed that no one would ever be able to solve the trick, this was an invitation for Dogge to prove him wrong. 

- And that Dogge was able to copy the work as Teller had not stated that the trick was a copyrighted work. 

Now  U.S. District Judge James Mahan in the Nevada District Court has ruled that what is protectable under copyright law is pantomimes, the art of conveying emotions, actions and feelings by gestures saying "federal law directly holds 'dramatic works' as well as 'pantomimes' are subject to copyright protection, granting owners exclusive public performance rights. The mere fact that a dramatic work or pantomime includes a magic trick, or even that a particular illusion is its central feature does not render it devoid of copyright protection" and Judge Mahan dismissed all of the Bakardy/Dogge defences. Teller's presentation of the trick is undoubtedly theatrical, and this decision has overcome the  decision of the Ninth Circuit Court of Appeals (and Bakardy/Dogge's only real chance of mounting a defence) in Rice v Fox Broadcasting: This was a copyright infringement case brought unsuccessfully by the owner of copyright in The Mystery Magician (a home video which explains how various tricks are completed) against Fox, which aired its own 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. Not so here - and the case is now likely goes to trial on the question of what damages are to be awarded to Teller.

In Europe,  this blogger wonders if the approach taken in Infopaq would now allow a magic trick to fall under copyright protection: if you have an opinion - don't forget to vote in our side bar poll: is it arguable that closed systems of subject-matter categorisation may no longer be compliant with EU law - or do categories of copyright protection still limit protection and the subsistence of copyright in 2014?

More on the background to this case here http://www.techdirt.com/blog/?tag=gerard+bakardy and a very weird YouTube site here https://www.youtube.com/watch?v=C9h7VWQUe-Y (Published on 8 May 2012 with Bakardy saying "Hereby I like to apologize to all magicians and fans of Teller, apologies to have upset you. This was never my intention. I will soon upload the complete, real and true story") and there is a new 'Bakardy Rose' video here.