Inside the First Amendment by Gene Policinski

Now you see it. Now you don’t … or don’t copy it, at least.

Magician Teller of “Penn and Teller” sued another magician in 2012 in federal court in Nevada over what Teller asserted was a copycat performance of Teller’s signature trick, “Shadows,” and his competitor’s offer to sell the secret behind the illusion.

In a decision a few days ago, U.S. District Court Judge James C. Mahan found for Teller — who legally has changed to just the one name — by ruling that while “magic tricks are not copyrightable, this does not mean that ‘Shadows’ is not subject to copyright protection,” noting federal law does shield “dramatic works” and “pantomimes.”

Free speech rights always have existed in tandem, and at times in tension, with copyright law. Unique creations cannot simply be replicated by others without permission — but satirical works, for example, have legal protection even when they strongly resemble the original creation. Throw in some exceptions to allow for what’s called “fair use,” and sometimes, with not even so much as an “Abracadabra!” or “Presto Chango,” the stage is set for disputes over who has the right to use what.

Mahan wrote, “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 protection.

The lawsuit revolves around an offer by a Dutch performer, Gerard Dogge, who court documents say “created two YouTube videos offering to sell the secret to one of Teller’s signature illusions.” The court record said Teller has claimed to have performed “Shadows” since 1976.

The judge ruled that Dogge’s “strikingly similar illusion entitled ‘The Rose and her Shadow’ infringed on Teller’s copyright,” and that Dogge will need to pay some yet-to-be determined damages.

In Teller’s illusion and Dogge’s similar trick, the shadow of a rose is projected by a bright light onto a light-colored screen some distance behind it. The magician then enters the scene, and in nearly-identical moves, Mahan said, proceeds to trim the shadow images’ leaves and petals of the rose, one by one, which similarly fall to the ground from the real flower.

Dogge claimed Teller’s partner, Penn Jillette, opened the door to his near-identical performance by daring people to copy it by saying “No one knows how ‘Shadows’ is done and no one will ever figure it out.” But Mahan said that fell short of authorizing others to publicly perform the work. It “only demonstrates confidence that the illusion is so clever that its secret cannot be discovered.” And, Mahan said, even if Jillette was issuing a challenge, it merely “provokes others to unearth the secret, not perform the work.”

The judge also said Dogge was wrong to argue that Teller’s complaint should be rejected because the “secret” behind his trick was different than Teller’s. Focusing on “the aspects of his performance that are not perceivable by the audience” ignores that fact that “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” since the two performances appear identical to an ordinary viewer, Mahan concludes.

While the amount of damages Teller might collect remains to be determined, the decision reaffirms some core principles of free speech and copyright: Ideas cannot be owned, but the unique arrangement or presentation of that idea can be copyrighted.

We see the same principle at work on the weekend, in golf tournaments. The scores and outcomes of this “serendipitous” competition cannot be owned, but the television broadcast account of the tourney — and even the unique way scores are reported from every hole on the course simultaneously — can be.

Some see copyright restrictions, particularly newer changes in the law that extend protections virtually forever, as antithetical to freedom of speech.

But the nation’s founders in creating U.S. copyright regulations were under no such illusion. Income from unique works fuels the engines of creativity that power a good deal of free expression. Nothing tricky about that.

 

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org.