Hocus Pocus: the Magic Within Trade Secret Law
| Publication year | 2020 |
Hocus Pocus: The Magic Within Trade Secret Law
Marianna L. Markley
University of Georgia School of Law
Hocus Pocus: The Magic Within Trade Secret Law
Cover Page Footnote
J.D. Candidate, 2020.
HOCUS POCUS: THE MAGIC WITHIN TRADE SECRET LAW
Marianna L. Markley1
I. Introduction............................................................................................112
II. Background..............................................................................................114
A. COPYRIGHT LAW...................................................................................................114
B. PATENT LAW............................................................................................................118
C. TRADE SECRET LAW.............................................................................................122
III. Analysis.......................................................................................................130
IV. Conclusion................................................................................................135
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"'What the eyes see and the ears hear, the mind believes.'"2 With a single sentence, Harry Houdini captured the essence of his craft. The best magicians, like Houdini, spend years studying and practicing in order to perfect magic tricks and illusions that will fool even the most careful observers. Houdini, for example, accrued a collection of nearly 4,000 books on topics ranging from magic and slight-of-hand to modern Spiritualism in order to study and perfect his art.3 His diligent study of magic turned out to be very rewarding because he would eventually be regarded as "the highest paid performer in American vaudeville."4
The legacy (and overwhelmingly large collection of magic books) Houdini left behind illustrates that the careful study, practice, and devotion he gave to his life's work allowed him to make his audience see and hear what he wanted them to believe. But Houdini was not the only one to devote his life to perfecting the art of deception. For centuries, magicians have bewitched audiences with tricks, illusions, and death-defying stunts.5 In fact, Criss Angel, a contemporary magician and illusionist, once wrote that magic is the second oldest profession in the world.6 As magic tricks have evolved, the mediums in which they are performed have also faced the inevitability of evolution. Today's magic shows appear in mediums ranging from traditional formats like David Copperfield's headlining show at the MGM Grand Hotel & Casino in Las Vegas,7 to less conventional formats like Justin Willman's Netflix series Magic for Humans8 and David Blaine's YouTube channel for street magic.9 "While magic tricks and shows have continued evolving, one constant remains: every magician fears having their secrets revealed.
In the digital age, performances of magic tricks may be easily recorded and posted on the internet for all to see. While this has provided many magicians with platforms to expand their audience and build their reputations, the Internet
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nevertheless presents a risk that a magician's secrets may be revealed for profit without their knowledge or consent.10 For example, websites like "Theory11.com" create and sell videos teaching people the secrets behind popular magic tricks.11 These videos can be instantly downloaded by people all over the world,12 thus the time and effort magicians put into the creation of their tricks is wasted because anyone can learn and profit off a magician's ingenuity.
Magicians, like Houdini, have spent years developing their tricks, and their careers depend on protecting those secrets. Yet, intellectual property (IP) law offers very little protection to magicians, particularly because of the threats they face in the digital age.13 Since magicians operate in an area of "'negative space,'" it has historically been difficult for magicians to protect their creative endeavors through copyright, patent, and trademark laws.14 In the context of art, negative space is defined as "the area surrounding the subject."15 If this definition is applied to IP law then copyright, patent, and trademark law would be the subjects and magic tricks would fill in the negative space surrounding these subjects because they do not fall squarely within the protection of any of these subjects. Instead of relying on traditional forms of IP law, the magic community has relied almost exclusively on internal enforcement of industry norms.16 These norms include the governance of attributing credit, using new ideas, and exposing secrets.17 The magic community is rather unique in this regard, and its uniqueness is the reason why trade secret law might afford magicians with a more pragmatic way to safeguard their tricks.
Although trade secret laws have not traditionally been invoked by magicians seeking to protect their tricks, that might start to change. In April of 2018, David Copperfield surmounted an incredible feat when a court afforded trade secret protection to his magic trick, the "Thirteen."18 This is a monumental decision for magicians seeking to protect their work through IP law. Although this was not the first time a magic trick has been at the center of litigation, it is one of the first times that a court has explicitly recognized that the secrecy of a magician's trick is protected by trade secret law.
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This Note will discuss why trade secret law is the most appropriate form of IP protection for magicians seeking to protect their secrets. First it will discuss the background information on IP protections offered to magicians, specifically within copyright, patent, and trade secret law. After examining previous cases in which magicians have sought protection for their work using each of these different types of IP laws, it will then analyze why trade secret law is the best form of IP protection for magicians.
A. COPYRIGHT LAW
The purpose of copyright law is "[t]o promote the Progress of Science and useful Arts," by allowing authors and inventors to benefit from owning the exclusive rights to their work.19 Copyright protection is offered to "original works" within categories like literature, music, drama, pantomimes, choreography, motion pictures, and other audiovisual creations.20 However, copyright protection hinges on the requirement that the work be "fixed in any tangible medium of expression" and fit within a copyrightable subject matter.21
Courts have held that magicians are not entitled to copyright protection because magic tricks and illusions do not fit within one of the subject matters that are afforded copyright protection.22 The world-renowned magician Raymond Teller, one half of the Penn and Teller duo, sued Gerard Dogge for "creat[ing] two YouTube videos offering to sell the secret to" Teller's illusion, "Shadows."23 Teller performs the trick by placing a vase containing a single rose in front of the audience and erecting a screen behind the props.24 A light is then shone on the vase and rose so that the shadows of the vase and rose appear on the screen behind them.25 Teller begins to cut the petals off of the shadow of the rose with a knife while the petals of the actual rose simultaneously fall to the floor.26 In March of 2012, Dogge created two videos in which he performed a similar act, and the caption boasts, "A Double illusion for the price of 'One'," making it clear that he intended to sell the secret behind Teller's trick.27
A copyright infringement claim requires the plaintiff to establish two elements in order for the claim to succeed: (1) that the plaintiff is the owner of a
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valid copyright; and (2) that the defendant copied the original elements of the work.28 On January 6, 1983, Teller registered his act as a dramatic work with the United States Copyright office (USCo) and his "certificate of registration describes the action. . .with meticulous detail, appearing as a series of stage directions acted out by a single performer."29 The court noted that registration with the USCO "constitute[d] prima facie evidence of a valid copyright if it [was] approved within five years of the first publication of a work."30 Even though Teller registered the act seven years after he first performed it, the court decided that Teller had provided enough substantial evidence to establish that he was, in fact, the creator of "Shadows."31
In response, Dogge argued that, even though Teller had registered his act, the "copyright [was] not valid because. . .it [was] registered as a dramatic work rather than [as] a magic routine."32 The court agreed with Dogge that magic tricks are not copyrightable.33 However, the court stated that dramatic works and pantomimes were copyrightable, and "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."34
The court clarified that magic tricks and illusions are not in and of themselves copyrightable, but their performance can be considered a dramatic work, which is within the protection of copyright law, and therefore copyrightable.35 Since Teller's certificate of registration meticulously described the act "as a series of stage directions acted out by a single performer[,]" his performance of the illusion is a dramatic work which falls within the protection of copyright law.36 Therefore, Teller was able to establish that he was the owner of a valid copyright, satisfying the first prong of the test for copyright infringement.37
The second prong requires Teller to establish that Dogge copied the original elements of the work.38 The court looked at whether there were "'articulable similarities between the plot, themes, dialogue, mood, setting, pace, character, and sequence of events'" when comparing the copied work to the original
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work.39 However, the court noted that ideas, concepts...
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