Magic Tricks not Protected by Copyright; the Performance of those tricks IS protected.

Teller (of Penn & Teller) is widely known as a great magician. He recently won a lawsuit against another magician who put up a copycat of Teller’s copyrighted illusion on YouTube.

Notable, magic tricks by themselves are not copyrightable. As Nevada U.S. District Judge James Mahan stated: “What is protectable under copyright law is pantomimes, the art of conveying emotions, actions and feelings by gestures. The theatrical medium where magicians work has some of the flavor of pantomimes, and Teller has used it to his advantage.”

In 1983, Teller registered his Shadows magic trick with the U.S. Copyright Office.  He included pictures the clearly and explicitly set forth how the trick is performed (but not the secret to the trick).  Teller has been performing this trick for nearly four decades. Judge Mahan says there is substantial evidence that he is the creator.

Then, Belgian entertainer Gerard Dogge posted a YouTube video of an illusion called The Rose & Her Shadow and offered to reveal the secrets for $3,050. The caption on his video said, “I’ve seen the great Penn & Teller performing a similar trick, and now I’m very happy to share my version in a different and more impossible way for you.”

Dogge argued that the secret to his magic trick is different than Teller’s and thus, no infringement.  The Judge said, in response, “By arguing that the secret to his illusion is different than Teller’s, Dogge implicitly argues about aspects of the performance that are not perceivable by the audience,” he writes. “In discerning substantial similarity, the court compares only the observable elements of the works in question. Therefore, whether Dogge uses Teller’s method, a technique known only by various holy men of the Himalayas, or even real magic is irrelevant, as the performances appear identical to an ordinary observer.”

Dogge copied the performance, and that is sufficient to win a copyright infringement lawsuit regarding the performance of magic tricks.

Teller was awarded a permanent injunction, damages of $15,000 and $500,000 in attorneys’ fees.

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