–Catlan McCurdy, Attorney
A magician by the name of Hans Klok, former Las Vegas performer and Pamela Anderson aficionado, was fined the equivalent of $16,725 earlier this month by a Dutch court in a copyright infringement case over magic tricks. Klok was sued by his former sidekick, Rafael van Herck, for copying a routine where the magician is seen fighting with a butler, first reaching through the butler’s body to grab a glass of water off a tray, then momentarily smacking off the butler’s head. It sounds like a great trick to me. I know how testy I get when my household help doesn’t bring me my favorite sparkling water the instant I ring them.
Klok argued that the routine was commonly known in magician’s circles, but the court found that van Herck’s combination was unique, forcing Klok to alter his act. Unique is certainly one word for smacking someone so hard their head falls off. The court didn’t stop there – it had one more trick up its sleeve – stating that if Klok ignores the ruling, he will be charged 5,000 euro for each time the routine is performed in public (and yes, I will be liberal in my use of magical puns).
What if all magic trick litigation resulted in this type of judgment? I bet a lot of us would start to take magic a little more seriously if we could pull that kind of cash out of a hat. In the United States, copyright law protects only those works fixed in a tangible medium of expression. But anyone who knows anything about magic knows that a magician would never be as foolish as to write down their tricks. Unless of course, the tricks were written in a code by Christian Bale.
And arguably, photographs or video recordings of a magic trick would not serve to fix the copyrighted magic trick in a tangible medium either, as the secret behind the trick would not be revealed during the performance.
From what I can tell, the copyright laws in the Netherlands do not require fixation. But can magicians protect their tricks in the US? It has been suggested that the solution may be found in state law, such as in California, where California Civil Code Section 980 provides idea expression protection for non-fixed works.
Or, perhaps the answer can be found within patent law. There have been several patents filed by magicians in the past, most notably Horace Goldin’s U.S. Patent No. 1,458,575 for the Illusion Device aka sawing a woman in half. Yet, both patent and copyright registrations require a magician to reveal his secrets. Goldin’s patent, while protecting his Illusion Device from other magicians, also exposed his methods. A patent would prevent other magicians from performing the trick during the duration of the patent term, but audience members everywhere could know the method and understand the trick before even taking their seats, resulting in a real audience vanishing act, with profits going up in smoke (I’m almost done, I promise).
That leaves trade secrets. Trade secret protection seems to be the best way for magicians to protect their tricks in the United States. Non-disclosure and confidentiality agreements could serve as some means of protection without forcing the magician to reveal the method as long as reasonable steps were taken to ensure the secrecy of the trick. Signing these agreements at the beginning of a magician-sidekick relationship could potentially allow for the type of relief that van Herck was able to seek in the Dutch court.