April 20, 2014

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Intellectual Property and Magicians

Jacob Loshin has an interesting draft paper on intellectual property among magicians. Stage magic is a form of technology, relying on both apparatus and technique to mislead the audience about what is really happening. As in any other technical field, innovations are valuable, and practitioners look for ways to cash in on their inventions. They do this, according to Loshin, without much use of intellectual property law.

This makes magic, like cuisine and clothing design, a thriving field that operates despite a lack of strong legal protection for innovation. Recently legal scholars have started looking harder at such fields, hoping to find mechanisms that can support innovation without the cost and complexity of conventional intellectual property law, and wondering how broadly those alternative mechanisms might be applied.

What makes magic unusual is that practitioners rarely rely on intellectual property law even though magic tricks are protectable by patent and as trade secrets. Patent protection should be obvious: patents cover novel mechanisms and methods, which most magic technologies are. Some classic tricks, such as the saw-a-person-in-half trick, have been patented. Trade secret protection should be obvious too: how to do a particular trick is valuable business information whose secrecy can be protected by the inventor. (The audience sees the trick done, but they don’t really see the secret of the trick.)

Yet Loshin, and apparently most magicians, think that patent and trade secret are a poor fit. There are basically three reasons for this. First, part of the value of a trick is that the audience can’t figure out how it’s done; but a patent must explain the details of the invention. Second, tricks are subject to “reverse engineering” by rival magicians who watch the trick done, repeatedly, from different parts of the audience, then do experiments to try to replicate it; and of course trade secrets are not protected against reverse engineering. Third, there’s a sort of guild mentality among magicians, holding that knowledge can be shared within the profession but must not be shared with the public. This guild mentality can’t easily be implemented within current law – a trade secret must be carefully protected, and so cannot be passed around casually within a loosely defined “community”.

The result is that the guild protects its secrets through social norms. You’re accepted into the guild by demonstrating technical prowess and following the guild’s norms over time; and you’ll be excommunicated if you violate the norms, for example by making a tell-all TV special about how popular tricks are done. (There’s an exception for casual magic tricks of the sort kids do.) The system operates informally but effectively.

As a policy guy, I have to ask whether this system is good for society as a whole. I can understand why those inside the profession would want to limit access to information – why help potential competitors? But does it really benefit society as a whole to have some unelected group deciding who gets access to certain kinds of information, and doing this outside the normal channels that (at least in principle) balance the interests of society against those of inventors? It’s not an easy question.

(To be clear, asking whether something is good or bad for society is not the same as asking whether government should regulate it. A case for regulation would require, at least, that the regulated behavior be bad for society and that there be a practically beneficial way for government to intervene.)

The best argument that magicians’ guild secrecy benefits the public is that tricks are more valuable to the public if the public doesn’t know how they are done. This is almost never the case for other technologies – knowing how your iPod works doesn’t make it less valuable to you – but it just might be true for magic, given that it exists for entertainment and you might enjoy it more if you don’t know how it’s done.

But I have my doubts that publishing information about tricks actually makes them less entertaining. Goldin’s patent on the saw-a-person-in-half trick – which explains pretty clearly how to do the trick – was issued in 1923, but the trick is still a staple today. In theory, anybody can read Goldin’s patent whenever they want; but in practice hardly anybody has read it, and we all enjoy the trick despite suspecting how it’s probably done. And do we really need to read Gaughan’s patent to know how a “levitating” magician stays up in the air? Gaughan’s cleverness is all about how to keep the audience from seeing the evidence of how it’s done.

One effect of the guild’s secrecy is that the public rarely learns who the great innovators are. We know who puts on a good show, but we rarely know who invented the tricks. The great innovators may be venerated within the profession, but they’re unknown to the public. One has to wonder whether the field would move faster, and be more innovative and entertaining, if it were more open.

Comments

  1. Douglas Kastle says:

    Please, please, please check out the movie “The Prestige” an absolutely fantastic movie (about magicians) that “seems” to be built around the concept of IP protection. Set in at the turn of the 19th/20th century it is a morality tale for our time on how far should someone (RIAA/MPAA?) go to, to protect a revenue source.

  2. Rob Kinyon says:

    I’m not so sure that such an argument really holds. Take a look at how the Opensource software world works. For those people who wish to take the time and learn what goes on behind the curtain, they can certainly do so. The source code for Linux, Perl, Apache, MySQL, phpBB … all freely available. But, 99.999% of all people who use those products (most without even knowing they’re doing so!) don’t care to do so. They, instead, just want to get on with their lives.

    The same goes for cooking and fashion. The information, in most cases, is completely freely available. What’s passed down between master and apprentice isn’t the recipe, but the knowledge of perfect process.

    In the OSS world, that master/apprentice relationship still exists, though most people wouldn’t consider it nearly as formalized. I know whom I did my apprenticeships under and who I still hope to learn from in the coming years. I didn’t learn how to write a forums website – I learned how to write proper code. That’s what, I suspect, magicians, chefs, and master designers pass down.

  3. Adrian says:

    A few years back, my wife sent me to a magician’s convention in Las Vegas for my birthday. I’m not a magician, but a big fan.

    I definitely noticed the guild mentality. In fact, one of the things that struck me at the lectures (where magicians explain how to do tricks to other magicians), was how careful everyone was to credit their predecessors. Most tricks are derivative works, combining lots of techniques from others. I watched several lectures where, as each step of the sleight was demonstrated, the move’s entire pedigree would be given (and sometimes debated).

    I also overheard some of the dealers of the larger stage illusions discussing performance licenses. A large premium was placed on those licenses. The props were priced at hundreds to a few thousand (as you might expect), but the licenses added thousands more to the cost. Different licenses with different terms and prices were available.

    I also heard one vendor talking about the possibility of suing a rival for patent infringement.

    There were a handful of others at the convention who, like me, were simply fans and not professional magicians. Anyone who paid the registration fee was accepted. We didn’t have to sign any NDAs.

  4. Seth Finkelstein says:

    Amusingly, Penn and Teller operate right in this space for their act.
    From their FAQ:

    Q) Are Penn and Teller really revealing the truth/secrets of their trade?

    Quoting David Berglas, President of the Magic Circle
    ‘Not as much as people have thought. They did a spoof on it. Some of
    it is absolutely great and wonderful to watch. They invented an
    illusion where they have a glass cabinet and apparently (sic) you can
    see what’s going on inside. But it’s not based on any real magical
    stuff and it was exaggerated, but they were funny, they were a bit
    gruesome. The only thing we didn’t like about them because they were a
    bit distasteful and we’d like magic to be a good entertainment.’

    But:

    Q) Would they be considered as outcasts among other professional magicians?

    Some magicians were VERY upset by Penn and Teller. One of these was
    David Berglas, President of the Magic Circle. Berglas said, “Penn and
    Teller wants (sic) to be successful at magic and couldn’t make it so
    they found another vehicle, they’re out to shock…Penn & Teller take
    the mystery out of magic and make it look as if it’s easy, er, some of
    it is some is very complicated. We’d rather keep our secrets and not
    have them exposed.”

  5. Bryan Feir says:

    As I recall, one of the tricks made famous by Harry Houdini was ‘The Metamorphosis’, a trick in which the magician’s assistant is bound, tied into a bag, then locked inside a box; the magician stands on top of the box with a curtain in front of him, then after the patter about the fastest illusion in the world, tosses the curtain up… and the assistant catches it coming down. After unlocking the box and untying the bag, the magician is found bound inside.

    Thing is, Houdini may have been the one who truly made it famous, with his wife as the assistant, but he didn’t invent it: he bought it off of another magician of the time who needed the money more. Very close-knit bunch there.

  6. Richard says:

    In the past magicians were supposed to operate an exclusive club – however these days many tricks are available for sale (and maybe it has always been so for anyone who took the trouble to investigate).

    Most of the time if you buy a magic trick the main thing you buy is “the secret”. Once you have bought the secret nothing in theory will stop you from passing it on for free – however if you do this then you devalue the very thing you just paid for. Most magicians will share the secrets of their tricks with associates or close family – mainly because you need to practice on somebody and few magicians are good enough to get it right first time

    You could also try to pass it on for money – but at this point the “guild” would stop you – because word would quickly get around that you were trying to sell someone else’s trick and you would not make many sales.

    I think magic is an excellent example of a field which works well on trust without much legal envolvement.

    Perhaps it’s because the instrument for copying in this case is the human brain (when you learn the secret) – and no one has found a way to apply DRM to it!

  7. Sickmind Fraud says:

    Part of the problem of patenting or copyrighting magical tricks is the fact of magic being a performance art. It is usually done Live. It is not mass marketed in the way that books are, and it is not distributed the way the music is. Therefore it is not subject to the same pressures seen in other markets. An you wind up with the problem that comics have, you really can’t use someone else’s material, because people expect you to have your own stuff, your own routine.

  8. paul says:

    Maybe the guild-style enforcement method has more to do with the financial scale of most magicians. Although (as noted above) there are dealers and a few others who could profit from patent or even possibly trade-secret protection (think how easy it would be to stick a no-reverse-engineering clause on the back of a ticket), the apparatus of the law is typically expensive, clumsy and uncertain. Even more so when performers rely on community reputation for bookings.

    Would there be more innovation, more entertainment if all magic tricks came under regular IP law, assiduously enforced? Maybe. Who knows, there might even come to be as much innovation as there is in the IP-law-preoccupied mainstream music industry…

  9. Shalmanese says:
  10. AllAboutVoting says:

    Steve Unger’s recent post “The Patent Game: Multiple Monopoly” seems relevant here.

    http://www1.cs.columbia.edu/~unger/articles/patents.html

    Also there is Richard Stallman’s rantargument against using the term “intellectual property” or any term to cover the three seperate fields of patent, copyright, and trademark:

    http://www.gnu.org/philosophy/not-ipr.xhtml

  11. aeschylus says:

    The proper term is “illusion”, not “trick”.

  12. Tel says:

    Recently legal scholars have started looking harder at such fields, hoping to find mechanisms that can support innovation without the cost and complexity of conventional intellectual property law …

    Very politely put, but I’ll be less polite and say that the patent lawyers are looking for virgin markets.

    The culture of secret handshakes and strong oral tradition is about to backfire when they realise that from the perspective of the patent office there is zero published prior-art so the goldrush has started and all claims are open. Sure, stage magicians are careful to credit their predecessors at conferences (as with any oral tradition of technology) but just because the entire trade knows the truth, is irrelevant to the patent office. Someone in the trade is guaranteed to realise that money is thicker than guild fraternity, a court case will declare that human memory is unsuitable medium for publication, and the industry is ripe for takeover.

    My guess is that the magician’s main protection is the difficulty of proof of infringement. The code of silence makes it more difficult to gather evidence and expert witnesses.

  13. Richard says:

    Actually there is plenty of prior art. There are many books for a start. Also many magicians “sell” tricks – in the form of a printed booklet (perhaps with some props) or these days a DVD or a video download.

    Another good reason why patent or copyright law will not get involved is because any court case would inevitably involve publicising the secret – a pyrrhic victory for the winner.

    Also there are very few genuine new principles – most “new” tricks are re- presentations, re-combinations and refinements of old ideas. The best magicians excel by using ideas that are commonplace in the magic community but performing or presenting them exceptionally well

  14. Ben Finney says:

    Please, Ed, stop using the term “intellectual property” as though it was some coherent collection of laws. This article has *only* to do with patent law and trade secret law; yet because you used the nonsense term “intellectual property”, people are dragging copyright law into it as though that had anything to do with the discussion.

  15. Richard says:

    Actually copyright could perhaps be applied – by analogy with its application to dance choreography – although that itself is somewhat controversial.

  16. Richard says:

    Matthew’s comment is certainly apposite for some tricks, sometimes a good magicians hand movements have beauty even if he isn’t doing anything deceptive – however others do rely on a secret – and leave you feeling really disappointed when you find out.

  17. Michael Carducci says:

    In the information age, we quickly forget that good magic has the power to enable us to experience the rarest of things; astonishment, mystery and wonder. These things are all too often taken from us at an early age.
    To quote the novelist Robertson Davies:

    “What is magic? Is it not the production of effects for which there appear to be no causes? Behind all magic there is an explanation, but it is unwise to seek it too vigorously; there are lots of things in life which are more enjoyable where are not completely understood. A good piece of magic is a work of art and should be respected as such; it is a flower, not an alarm clock, and if you pull it to pieces to find out what makes it work, you have destroyed it, and your own pleasure. “

    Magic is ripe with theft. I cannot begin to tell you how many times I have seen other magicians purloin material–verbatim–from the acts of others. There was a time when a magician would be ostracized for such a thing, but many of the current generation of magicians have such a narrow body of knowledge that most are completely unaware of it, and many others simply accept this.

    Greed is causing the art of magic to collapse. Some have discovered that it is much easier to sell secrets than perform them, others have discovered that digging up a forgotten idea, claiming it as one’s own, can be a shortcut to 15 minutes of fame and a few thousand dollars.

    The issues inside the magic community aside, for a moment, I do believe that magicians should make better use of trade secret laws to protect their art. Learning the secrets of magic was once a journey, now it’s a google search. As far as patents and licensing go, this is currently very much more the exception rather than the rule. I can think of very few magicians who do any amount national/international TV work without working with a team of magicians/consultants. These people realize that there is a whole generation who wish to emulate David Blaine or Chris Angel and that there is an enormous market for selling the tricks he performed on screen. This is where you are most likely to see restricted rights (and also most patents) Most mainstream magic tricks on the market simply cannot be patented because there is so much prior art (as others have pointed out on the thread). I do, however, suspect that greedy dealers will continue to explore licensing as a way to increase profits. But, from a practical perspective, this can really only apply to televised performances.

  18. Xcott says:

    I note that there are two separate issues in magic: revealing secrets, and plagiarizing someone else’s act. You can be ostracized for one or the other.

    I think that plagiarizing someone’s act is the greater offense. There, you’re really messing with someone’s income, in a field where there is frankly a lot less money than software engineering. There is also the matter of passing an idea as your own, which is as taboo in magic as it is in academia.

    Indeed, why not consider academia as a model rather than magic? There, you have similar notions of “stealing” an idea, which are not really enforced by law but by social mores and ethical guidelines. And academia achieves this without the extra rules about secrecy.

    However, I don’t see how anything like that can translate into industry, when lots of money is on the line.

  19. Spudz says:

    “However, I don’t see how anything like that can translate into industry, when lots of money is on the line.”

    Maybe we don’t NEED an industry anymore. Not an entertainment industry, that is. Formerly, it was needed to generate big marketing and big distribution. These days, the Internet enables big marketing and big distribution by the little guy, almost directly, on a meritocratic basis: have something good and seed a torrent of it.

    Industry was never needed for production of cultural artifacts and entertainment; that’d already been going on for thousands of years before Watt came up with his steam engine.

    Only wide distribution and marketing of same requires industrial-age technology, and with the ‘net, it no longer requires its own centralized industry, just the existing telecommunications industry. And the latter benefits from free sharing, as they sell bandwidth and free sharing encourages its use.

  20. BT says:

    >> There’s an exception for casual magic tricks of the
    >> sort kids do

    In teaching magic one school of thought is not to reveal the method to an effect, unless the person you are teaching it to is at a level to be able to perform it.

    “Kids” magic is revealed freely. This allows the magic community to grow. More advanced magic comes with an expression of interest and the showing of proficiently with the basics.

  21. Jain says:

    Magic and Bill Gates seems great combination, Making top dollars is big magic, Well if you want to see what his house pictures go Bill Gates House