Magicians innovate without IP law
Jacob Loshin, a law student at Yale, drafter a paper exploring how stage magicians protect the secrets behind their tricks, and continue to come up with great new ideas, without getting caught up in the insanity of intellectual property law. Basically, magicians police themselves based on a set of norms for treating secrets, presentation styles, and techniques of making magic. Violate the norms by, say, stealing a trick or not giving credit where it's due and you'll be shamed and shunned by your fellow magicians. From the abstract:
Intellectual property scholars have begun to explore the curious dynamics of IP's negative spaces, areas in which IP law offers scant protection for innovators, but where innovation nevertheless seems to thrive. Such negative spaces pose a puzzle for the traditional theory of IP, which holds that IP law is necessary to create incentives for innovation.Link (via TechDirt, thanks Sean Ness!)
This paper presents a study of one such negative space which has so far garnered some curiosity but little sustained attention - the world of performing magicians. This paper argues that idiosyncratic dynamics among magicians make traditional copyright, patent, and trade secret law ill-suited to protecting magicians' most valuable intellectual property. Yet, the paper further argues that the magic community has developed its own set of unique IP norms which effectively operate in law's absence. The paper details the structure of these informal norms that protect the creation, dissemination, and performance of magic tricks. The paper also discusses broader implications for IP theory, suggesting that a norm-based approach may offer a promising explanation for the puzzling persistence of some of IP's negative spaces.
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I hadn't thought about magicians, but it seems that professional cooking is one of those negative areas also.
There are an incredible number of people inventing new recipes despite the fact that you can't patent them.
If breaking IP law involved the possibility of being turned into a frog, you'd respect it too. Ribbit.
For magicians, giving credit lends an aura of greatness to the trick they're doing. If "the great Houdini died attemptin the trick I'm going to attempt tonight," that's only going to suck the audience in more.
Funny, I just saw the couple who do that "quick change" trick on tv a few days ago (where they change clothes super fast) and the guy said they patented the effect. Wikepedia lists a few tricks and devices that have been patented including, "The Quick-change magic trick under the U.S .Patent number 6,308,334."
It was much the same among musicians before the 20th century.
Where does that leave Penn and Teller? They expose magic tricks all the time (they had a TV series about it) yet they still manage to get work...
What are some other "copyright negative" areas? Someone mentioned cooking, which is more or less true (Coke's secret formula is an example cited in just about every IP class). Comedy may be another-- comics steal jokes, and collect jokes, and pay other people to write jokes, but it is the actual performance of the joke that is where the money is. I think that may be close to what goes on with magic, too.
Curiously, law is another area that is nearly copyright free-- perhaps a real world manifestation of Gödel's incompleteness theorem. In order for a system of law to function properly, it must operate transparently. Companies like Thompson-West Publishing take work that is in the public domain-- statutes and judicial decisions-- and provide indexes, annotations, and other copyright protected features in order to make the public domain material more accessible. Where it gets more interesting is in the processes of law. Lawyers and publishers have tried to copyright forms for any number of things, but with only mixed success-- in order to be commercial, such forms need to be pretty generic.
They're not magic tricks, they're illusions.
i haven't read the paper, but it seems to me that the sample size of innovative magicians and the like are so small that they can police their own ranks. i wonder how many people really think that they can become rich as a professional stage magician versus the number of people that think the same by getting their song into heavy rotation, you know what i mean? i mean everyone is an artisit when it comes to art that's a little more mainstream and everyone that's in those arts sees copyright as a payday. seems pretty cut and dry to me. now that i've shot my mouth off, i'll go read the paper.
i've been thinking a lot about hip-hop as a "copyright negative" space. not the music, but the b-boy: style, dance, graff, and emceeing. if you steal someone else's flow or moves, the community calls you out.
and don't forget about carlos mencia v. joe rogan.
in both of these examples, powerful media outlets tip the balance against self-policing.
The other aspect of the magician's method is one of small community. If everyone was possessed by the desire to perform magic tricks you'd see it all fall apart. Instead, it's like a small town where everbody knows everybody else's business.
Jacob's paper makes for interesting reading, certainly from my perspective as both a performing magician, and a published magical inventor. The naming and shaming mechanism and the self-regulation tends to work quite well, and the credit system is generally well followed.
In my self-published book, I went to great lengths to ensure correct crediting, proofing the book to a number of other performers just to help research the lineage of the concepts explained. Several effects were excised for their similarity to ones previously published by others, effects which I was ignorant of at the time of writing. No legal obligation existed to do this, but rather an ethical one, plus of course I don't want to be lambasted by my peers who would naturally (wrongly!) accuse me of plagiarism.
The system will now follow on: original ideas from my book should be credited if they are referenced or developed in future texts, but of course credit need not be made when they are actually performed. In those circumstances I would expect my readers to claim the miracles produced as their own, because in my eyes, that is what they have paid for.
The system works fairly well, and operates on trust, as does the entirety of magic, founded as it is on the management and development of secrets.
(I do however think that share-and-share-alike copyfighters would go nuts if they had to deal with magicians)
Magcians have a code to respect each others work. Additionally, they don't seek monopolies as they can only be in one place at a time.
Modern capitalist want to be everywhere all the time making all the money.
BeDammit
I thought another purpose of IP besides providing an incentive for innovation it to prevent the loss of new innovation due to secrecy. In the magician example, if a magician came up with a great new trick but told no one how it was done and takes that knowledge to the grave then humanity in general is at a loss.
#6: Penn and Teller describe readily available and commonly known stunts and party games.
They do so in order to both prime the pump - to hook people into being interested in magic - and to give people who want nothing more than cheap thrills plenty of opportunity to do nothing more than that.
If a talented magician comes up with a great new trick, tells no-one how it is done, and takes that knowledge to the grave - is humanity in general really at a loss?
Are we counting the number of young innovative magicians the old master inspired?
Are we counting the number of people who avoided being hustled by charlatans because the old master's performance helped them realise that such feats are within the capabilities of humans and aren't supernatural / spiritual - ?
Ah, but they don't keep it to themselves forever. And others are allowed to try to figure it out. They just have to not plagorize everyone's acts. :)
Magic tricks are maintained as TRADE SECRETS, which is part of IP law. Not to mention that numerous Houdini tricks have never been fully figured out, because he kept them SECRET. The point to patents is to disclose the secret in exchange for a limited monopoly. Compare this with trade secret law, which gives you the secret forever, or until someone else figures out how you did it. Quite a few secrets were lost with their inventors, not just Houdini but also some of Tesla's demonstrations have never been duplicated.
It's interesting that patents in this example are tied to magic. It seems a rather incongruous dichotomy to combine the two ideas, yet an interesting area of the law. While a typical product "rip off" (use of a patent while not paying the license) requires, what should be considered "an extraordinary effort." The same seems to apply to magic tricks, or as they more properly be considered, "a method of confusing or confounding a audience by way of ___".
While it most likely seems this should fall under a trade secret level of protection, (whereas, if you don't tell anyone how you do the trick, it's still yours, and the second you do, it's no longer a secret, and thus, unprotectable, because a person of reasonable skill in the trade was able to execute the same method. Again, then should this IP be licensed? Would the water torture trick, done so well by houdini, and likely performed and developed well before him, be licensed and paid forever to a bank account to some clever man in China who came up with the idea 100 years ago (forgive my magical history, that part I'm simply making up for metaphor)? If the same is true, then performance art should fall simply under copyright/trademark, because it is akin to performance just like singing or movies. Whereas the "Business method" isn't the patent, but the item used to perform the trick IS patentable as a machine or device.
just my 2 cents
-Fred Schechter
www.ds4design.com
Penn and Teller are from the mold of Houdini.
Harry Houdini effectively ended the possibility of a slight of hand artist claiming that they had supernatural powers.
Since no one with a decent education claims to believe in supernatural powers of the sort used in Houdini's day, Penn and Teller expose small con types of tricks, but this comes with a twist.
If there is a trick that everyone knows, they often do a lead-away. They make you think that they are going to end with one result but then have an other. For instance everyone thinks they are going to produce a 3 of spades as the card you picked from the deck but instead the wrong card is guessed, the trick seems to be a failure, the audience laughs, and then Teller makes them pay for laughing at the failure (which is just more setup) when he takes off his sunglasses to reveal 3 of spades written on his eyeballs (special contact lenses).
The revealing of a trick's secret becoming the setup for a grander trick is also a very old a respected technique with magic.
I read that Houdini biography Boing Boing featured a while ago, and that book made him seem like a bit of an IP troll, constantly threatening other to sue magicians for performing his "patented" illusions and such.
“Such negative spaces pose a puzzle for the traditional theory of IP, which holds that IP law is necessary to create incentives for innovation.”
and what tradition is this? perhaps the article in general is in the right direction but a statement like this is indicative of the rampant success of the ip lobby's fud campaigns.
Does this remind anyone else of the Magician's Alliance that Gob belongs to in "Arrested Development". We demand to be taken seriously!
#5: "It was much the same among musicians before the 20th century."
That's the first thing I thought as well. Being a musician myself, I always sort of wish it were still this way. As others mentioned above, it could be implausible based solely on the sheer volume of musicians these days. But I always felt like, if you wrote a great song, and everyone recognized that it was good - that's all you would need. Anyone could perform it (that's what you want, right?), but would automatically give you credit as the creator. If anyone else tried to falsely take credit for or in some way abuse your song, everyone would know who to really attribute it to, and shun or ridicule the offender.
But hey, maybe with the global magic of the internets, and the way it can make the world seem much smaller, a modern model of this could be possible... But it would require a sort of paradigm shift that would certainly unsettle more than a few of the people who are cashing in on royalties and/or locked into the modern-day model...
I'm not really sure the point of this post. It's not like there is a company named Magician Manufacturing out there that is mass producing magicians to host shows with stolen tricks. And its not as if any manufacturers have been able to do much of anything about any of the Chinese knockoffs. Now that China's economy is rolling, once it is in full steam, their economy alone will fully reward IP theft without ever having to distribute those stolen IP goods outside the country. So, again, what am I supposed to take away from this post? Usually, I get it. But not this one. A little help?
Regarding dying magicians and lost tricks... that's an argument for IP, right? i.e. registered patents, etc.
I need coffee.
I always used to think that recipes were not patentable, but I recently asked a patent lawyer about this, and it turns out that they are in fact patentable.
This is bunk. As a professional magic creator and consultant I can assure you that we do not do a very good job of policing ourselves. Several famous magicians are notorious for stealing whole routines from less well known magicians and there is no punishment for that. Several magic creators have been driven out of the business because people kept stealing from them. This claim is just absurd.
@counsel, more fields (than magic, law, and cooking) that do fine without IP protection: fashion and conceptual art.
I agree with Andrew Mayne's comment. Knockoffs of popular tricks are thrown onto the market all the time. Also, magicians use Web sites like mallusionist.com to try and trap people online who are searching for magic exposure, because they have no way to stop the "leak" of secrets.
The notion of magic secrets "going to the grave" is pretty much a non-issue. Original secrets are few and far between in the magic world, and most magic effects are easily reverse-engineered by experienced magicians.
Following up on Andrew Mayne's excellent (and accurate) comment (#16): "Stealing," "using without credit," and other forms of "unauthorized" borrowing are rampant throughout the magic world. I have friends who have created effects only to see them performed on TV shows by big-name magicians without attribution, permission, or payment. Knock-offs abound in the magic world.
The IP issue, however, is the biggest elephant in the room for the magic world. Kevin Kelly's "Universal Library" is quietly coming to pass in the magic world as well, and the Torrent sites have become a haven for "sharing" vast libraries of in- and out-of-print books and videos. This new world of information sharing means that the young and the poor all over the world will now have access to all the great thoughts and secrets of magicians past and present.
This is a glorious development, in my opinion. It is already creating a new generation of magicians who are more knowledgeable about more magic history and theory than any previous generation. And as with the music world, the profusion of torrent sites also means creators like Mayne are much better known and more beloved than they could ever be in a pre-Internet world.
Of course, the price is that creators will find it increasingly difficult to get paid for works that -- like the latest songs and movies -- hit the freeweb almost as soon as they hit the stores.
The only solutions are for creators to either 1. gift the world with their creations, or 2. figure out a fundamentally new paradigm to make money in this new world. I suspect the future will see some combination of 1 and 2. Stay tuned.
Jim Steinmeyer (one of the creators mentioned in the paper) and I have gone on the record here disputing this paper's claims.: http://itricks.com/news/?p=2061
If you reveal the secrets to a magic trick doesn't Rollo come by and threaten to take your legs?
And for the record...they're not tricks...they're ILLUSIONS (Michael).
If you reveal the secrets to a magic trick doesn't Rollo come by and threaten to take your legs?
Ironically, this is indeed one of the more effective ways magicians protect their IP, not so much against undesired exposure but against copycats. I've heard any number of stories over the years of magicians stealing material who get either a phone call or a personal visit to "persuade" them to stop.
This is especially true if you rip off a big name performer in Vegas. Some of those guys have absolutely no sense of humor about that.
This is the beginning of new era where IP protected technology innovations versus self protected technological innovations. Spontaneous advancement of technology demands latter one and new IPs are going to be inherent in the technology.
Magicians are more concerned about the exposures that occur on sites such as youtube, and other similar sites.
so-called performers, attempt to show a 'magic trick' then they go on to explain how they did it.
The performance is usually under-rehearsed, badly presented and is barely entertaining.
In some cases, explanation DVDs that have been prepared for the magic fraternity (selling for about £25 upwards from a reputable magic dealer)have appeared on these sites. Uploading material from a retail DVD is clearly copyright violation, but the sites are slow to respond to the requests to remove this material.
Despite numerous requests from the magic fraternity, these sites do not monitor the exposures, or even warn the viewers that the video may spoil their enjoyment by revealing a gimmick or spoiler.