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The historic Magic Castle in Hollywood, California. Legend has it that the Castle is haunted, including by the ghost of magician Dal Vernon. (for more ghost stories about the Magic Castle, see Tom Ogden's video, here)

The historic Magic Castle in Hollywood, California. Rumor has it that the Castle is haunted, including by the ghost of magician Dal Vernon. (for more ghost stories about the Magic Castle, see Tom Ogden’s video, here)

Even if you’re not into magic, Penn & Teller will amaze you. For readers who aren’t familiar with them, Penn Jilette and Teller (it’s just “Teller” without a first/last name, like “Madonna”; oh, and he doesn’t speak) are wildly popular and talented entertainers & magicians. A while back, we were lucky enough to catch their act at Hollywood’s historic Magic Castle. Their amazing act was one of those things that you’ll never forget.

This week, an episode of  Penn & Teller’s new TV show “Fool Us” aired in Los Angeles. Fool Us is a pretty amazing show too. During each episode, magicians do a trick while master magicians Penn & Teller watch. Penn & Teller then try to determine how the trick was done. If the magician succeeds in stumping Penn & Teller, he or she gets to advance to the next level competition in Las Vegas. Watching the show brought to mind a very interesting 2014 court decision on one of Teller’s signature magic tricks which, allegedly, had been stolen.

Teller filed the case in the District Court in Las Vegas against Dutch performer Gerard Dogge. In 2012, Dogge posted a You-Tube video in which, for $3000, he would allegedly sell you the “secret” to one of Penn & Teller’s signature magic tricks.  The trick, which Penn & Teller have been performing for more than thirty years, is called “Shadows.” During the act, a bright light trained on a rose in a vase creates a silhouette of the rose on a white screen positioned behind the rose.

A Shadow

Drawing from Teller’s 1983 Copyright Application for “Shadows.

Teller then comes onto the stage and, with a knife, cuts at the shadow of the rose’s leaves and petals on the screen. As he cuts, the real rose’s leaves and petals fall. There’s a bit more drama to the act (including blood!), but that’s the simplified version.

Back in 1983, Teller had registered a “dramatic work” copyright with the U.S. Copyright Office to protect “Shadows.” While the copyright registration didn’t give away Shadow’s magic secrets, it did describe the sequence of movements and actions in detail. Dogge’s You-Tube video showed Dogge performing an act that was very similar to what Teller had disclosed and registered with the Copyright Office. Dogge also tagged his You-Tube videos with the keywords “Penn” and “Teller”.

Just as an interesting side note, Teller’s endearing and quirky personality shows in his copyright application. In a section he titled “Historical Note”, Teller says:

This gothic pantomime has been performed by its creator over 1100 times since 1976. It’s about time he registered a copyright, don’t you think?

Note, though, that the character in Teller’s pantomime, as disclosed in his application isn’t all warm and fuzzy. Teller names him as a “lurking” “murderer” with a dagger.

Anyway, back to the lawsuit. After filing suit, Teller moved for summary judgment. Dogge opposed the motion by arguing that magic tricks aren’t copyrightable and that Teller had allegedly challenged other magicians to copy his act. The Court agreed that magic tricks aren’t protected by copyright, but clarified that “dramatic works” and “pantomimes”, like Shadows, are in fact eligible for copyright protection (see e.g. 17 U.S.C. Sections 102 and 106):

[I]n terms of copyright protection, the secret behind the trick does not impress the court, [however] the performance it is used for is everything.

The Court also rejected Dogge’s contention that Teller had abandoned any copyright rights he held in Shadows. After determining that Teller held a valid copyright in Shadows, the Court went on to consider the details of Dogge’s act to determine that Teller’s  copyright had been infringed. Dogg also tried to argue that the magic trick portion of his act differed from that in Teller’s, but the Court was having none of it:

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 did manage to raise an issue of fact as to whether his infringement was willful, so the Court didn’t determine the amount of damages in its March 2014 opinion on summary judgement. The Court did, however, determine that awarding Teller his attorneys’ fees was appropriate. Trial was set to take place in early June of 2014.

Later, though, Dogge failed to make his pre-trial disclosures and he refused to agree to appear in-person at the trial. Ultimately, Dogge defaulted in the case and the Court awarded Teller $15,000 in statutory copyright damages and a permanent injunction against Dogge (but not including any of the related props that he used and sold).  Teller had also asked the Court for $57,906 for his court costs and $931,661 in attorneys’ fees. Although the Court agreed that the requested fees were reasonable, it lowered the amount because Dogge apparently hadn’t made much off of his You-Tube offer. In light of that, the Court lowered Teller’s costs and attorneys’ fees award to $530,000 ($30,000 in court costs and $500,000 in attorneys’ fees).

So, there you have it. While magicians can’t exactly seek copyright protection for the “magic” part of their acts, they don’t have to rely solely on ‘blackballing’ those who steal their secrets. If the act is also a creative “dramatic work” or pantomime, it may be protectable under copyright law.

Have you ever seen one of Penn & Teller’s shows? How was the show?

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