27 August 2009
Spain’s magicians are reportedly outraged by the exposure of their tricks and illusions on the “Masked Magician” television show. Recent news reports indicate they are seeking legal advice on how best to protect their “IP”, to avoid their craft from being undermined.
This is a great example of (largely) unexplored IP territory. Are illusions and magic tricks capable of IP protection? Here is some initial thinking:
- Magic tricks are best described as trade secrets. The best way to protect them is to keep them to yourself, or trusted colleagues. The problem here is that the Masked Magician has apparently revealed this information without permission from his magician fraternity. Ordinarily, you would think an injunction could be obtained preventing future episodes from being broadcast. However, the Masked Magician might be entitled to argue that this information is already in the public domain. Much is published on the topic on the Internet and in books. It may just well be that the Masked Magician has reached a very large audience due to the success of his show.
- Perhaps there is copyright in the presentation of the magic trick as a dramatic work. However, in a community of magicians who share this knowledge, it would be hard to determine the copyright owner, unless the trick is relatively new. Also, infringements of dramatic works are hard to prove where there is improvisation.
- Patents enable the protection of an idea. However, to obtain a patent monopoly, your idea must be registered and available for public viewing. This is the antithesis of a magic trick.
So, the lesson appears to be: if you have a secret, keep it. If you tell anyone, have them sign a confidentiality agreement. And enforce any breaches to prevent their entry into the public domain.
Any further thoughts on this topic? We’d be delighted to hear them.
